Anonymised Summary of the Opinion

Factual and Procedural Background

This litigation concerned the legal validity of the Defendant's policy governing family reunion for child refugees (children under 18 who have been granted asylum or humanitarian protection and who arrived in the State without their family). The Appellant is a refugee who was granted status as a minor and whose parents and siblings applied for family reunion from abroad. The Appellant initiated judicial review proceedings challenging the Defendant's policy on 30 September 2020; the family's contemporaneous consular/entry-clearance application was later refused and became the subject of an amended challenge but that part of the dispute became academic after the family's eventual admission to the State.

The High Court (Judge Lavender) heard the challenge in June 2022. The Appellant advanced three grounds: (1) that the Defendant breached her duty under section 55 of the Borders, Citizenship and Immigration Act 2009 by formulating/maintaining the impugned policy without due regard to children’s best interests; (2) that the policy discriminated contrary to article 14 read with article 8 of the ECHR and section 6 of the Human Rights Act 1998; and (3) that the policy was irrational. Judge Lavender delivered two judgments (March 2023 and April 2024) dismissing the section 55 and discrimination grounds (the discrimination finding did not proceed to justification) and ultimately dismissing the rationality challenge after further submissions.

The Appellant was granted permission to appeal to the Court of Appeal (permission given by Judge Lewis). Company A (an international organisation that had been permitted to intervene below) was again permitted to intervene on appeal. The Appellant’s legal team was led by Attorney Husain, Attorney Pobjoy and Attorney Mitchell; the Defendant's team was led by Attorney Giovannetti and Attorney Anderson; Company A was represented by Attorney Naik, Attorney Bandegani and Attorney Chapman. Judge Lewis extended prior anonymity orders and the appellate court preserved anonymity for reasons explained in the judgment.

Legal Issues Presented

1. Whether, in formulating and maintaining the relevant family reunion policy for child refugees, the Defendant breached her duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to make arrangements ensuring that immigration functions are discharged having regard to the best interests of children (the "section 55" issue).
2. Whether the Defendant's policy discriminated against child refugees and/or their families contrary to article 14 of the ECHR read with article 8 (the "discrimination" issue).
3. Whether the Defendant's policy was irrational (a Wednesbury-style challenge) in light of the available evidence about risks and harms, including the so-called "anchor child" phenomenon (the "rationality" issue).

Arguments of the Parties

Appellant's Arguments

• The Defendant’s family reunion policy is unlawful because child refugees cannot sponsor parents or siblings automatically: instead, parents/siblings of child sponsors must satisfy a higher, evaluative "unjustifiably harsh consequences" test, which is not applied to partners or minor children of adult sponsors (who are eligible automatically).
• Under section 55 the Defendant was obliged, when she formulated and maintained the policy, to identify and assess the best interests of children generally and to make arrangements ensuring that decisions and rules gave primary regard to those interests; the Appellant contended that no such assessment was carried out when the policy was made and maintained after section 55 came into force.
• On article 14 + article 8 grounds the Appellant argued that child sponsors seeking reunion with parents are in an analogous position to adult sponsors seeking reunion with minor children (or are in a different situation yet treated the same), and that the difference in treatment lacked objective and reasonable justification.
• The policy is irrational: the Appellant contended that the evidence did not rationally support the Defendant's assessment that permitting automatic reunion for child sponsors would incentivise dangerous journeys (the "anchor child" risk) or that any such deterrent outweighed the harm caused to child refugees by the restrictive policy.

Defendant's Arguments

• The Defendant contended that the duty under section 55 can be discharged by making guidance that requires caseworkers to treat a child's best interests as a primary consideration in individual decisions, and that the Family Reunion Guidance and the Rules and guidance taken together already required that consideration in individual cases.
• As to whether the section 55 duty attached to the formulation/maintenance of policy, the Defendant maintained that a mere decision not to review or to refuse to change a policy does not amount to the discharge of a function under section 55 unless it follows an active/substantive review process; the Secretary of State and Ministers had not actively reconsidered the policy in a manner that would trigger the duty.
• On discrimination, the Defendant relied on legitimate public-policy aims (notably preventing incentives for children to be sent on hazardous journeys — the "anchor child" concern) and submitted that a wide margin of appreciation applies in immigration and socio-economic policy; treating child sponsors differently in practice was justified and proportionate because of the specific safeguarding and deterrence rationales.
• On irrationality, the Defendant argued that the maintenance of the policy was a matter of judgment about risks and benefits in a sensitive public-policy area and that the evidence before the tribunal and the appellate court (including international material reporting occurrences of the anchor-child phenomenon) was sufficient to make the policy rationally defensible.

Company A (Intervener) and Other Evidence

• Company A and various NGOs provided evidence and reports critical of the Defendant's restrictive approach, emphasising the harm caused to child refugees and international comparative practice (many States permit parent/sibling reunion on relationship-based grounds for child refugees).
• Independent reports (parliamentary committees, Chief Inspector, NGO reports) were relied upon by the Appellant to show longstanding criticism and to provide evidence of impact; the Chief Inspector's report recorded that ministers regarded "child sponsors" as a ministerial red line.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mosira v Secretary of State for the Home Department [2017] EWCA Civ 407	Shows that the Refugee Convention does not impose a right to family reunion by way of leave to enter; UNHCR encouragement does not create treaty obligation.	The court cited this to explain that there is no treaty-based obligation for family reunion and to frame the role of UNHCR materials as persuasive but non-binding.
MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192	Use of "exceptionality" in Home Office drafting and how that concept has been used in immigration contexts.	The court relied on the case to contextualise the Home Office's use of "exceptional circumstances" language and to caution against using exceptionality as an independent criterion.
Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60	Reference for the use of prior case-law in considering immigration policy drafting (cited by Lord Reed in other contexts).	The judgment was cited as background authority on immigration law principles and how exceptionality has been discussed in earlier Supreme Court authority.
HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22	Observations on the inappropriateness of exceptionality as a distinct criterion in immigration policy.	The court cited Lord Hamblen's observations to support caution about treating "exceptionality" as an independent legal test.
Project for the Registration of Children as British Citizens (PRCBC) v Secretary of State for the Home Department [2021] EWCA Civ 193	Distillation of s.55 case-law: duty-holder, scope, application to rules and guidance, and that best interests are a primary consideration.	The court adopted the formulation summarising section 55: that the duty is on the Secretary of State, applies to rules and guidance, and requires identification and weighing of children's best interests.
R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16	Explains the content of what a "section 55 exercise" or "best interests" evaluation should include (weighing children's interests against countervailing considerations).	The court quoted Lord Carnwath's summary to describe expectations of the evaluative process required by a section 55-style duty.
MM (Lebanon) v Secretary of State for the Home Department [2017] UKSC 10	Authority noting that section 55 applies to the making of rules; general approach to children’s interests in immigration rules.	The court relied on the point that rules and subordinate legislation are within the ambit of the duty to have regard to children's best interests.
CAO v Secretary of State for the Home Department [2024] UKSC 32	Recognises the distinction between officials acting under delegated authority and the Secretary of State/Ministers acting personally in policymaking.	The court cited this to explain the "make arrangements" structure and the role of ministers in setting policy.
Badmus v Secretary of State for the Home Department [2020] EWCA Civ 657	Example of a formal review process producing a considered policy choice, relevant to whether a decision not to change policy can amount to a function.	The court used Badmus to show that where a formal review process occurs, a decision to maintain the status quo can be a discharge of a function (contrast with mere refusal to review).
Adiatu v Her Majesty's Treasury [2020] EWHC 1554 (Admin)	Discussion of limits to public-sector process duties (e.g., PSED) and keeping obligations within sensible bounds.	The court referenced Adiatu as a reminder that process duties must be interpreted sensibly and not extended to every instance of inaction.
R (the 3million Ltd) v Minister for the Cabinet Office [2021] EWHC 245 (Admin)	Consideration of whether omission to amend regulations attracts PSED obligations (observations about active consideration).	The decision was cited for the proposition that a minister may exercise functions when actively considering regulation amendments, but on the facts it did not decide the general question.
Bridges v South Wales Police [2020] EWCA Civ 1058	On the PSED as a continuing duty and the need to monitor impacts when deploying novel systems (an authority on "continuing" obligations).	The court relied on Bridges for the proposition that certain duties are continuing and require monitoring (analogy used in argument about section 55).
Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345	McCombe LJ's summary on PSED consequences, including that the duty is continuing.	The court cited the summary to support arguments that process duties can be continuing in nature.
R (DMA) v Secretary of State for the Home Department [2020] EWHC 3416	Example finding breach of PSED for failure to monitor operation of a policy.	The case was referred to as showing that a failure to monitor can result in a PSED breach in appropriate circumstances.
R (Elkundi) v Birmingham City Council [2022] EWCA Civ 601	Consideration in the Court of Appeal of PSED issues (limited reliance in this judgment).	The judgment was referenced but not treated as decisive; the court noted limited relevance to precise question here.
R (DXK) v Secretary of State for the Home Department [2024] EWHC 579 (Admin)	Recent High Court authority cited in argument (not pressed on appeal).	The court noted the citation but did not rely on it for its substantive conclusions.
R (Refugee and Migrant Forum of Essex and London) v Secretary of State for the Home Department [2024] EWHC 1374 (Admin)	Example where PSED engagement was conceded where long-standing policy was maintained.	Referenced as part of a body of cases suggesting monitoring obligations may exist for some policies; not determinative here.
R (Awale) v Secretary of State for Justice [2024] EWHC 2322 (Admin)	Discusses PSED; referenced in relation to Bridges and continuing duties.	The court noted a summarising passage aligned with Bridges; it did not change the analysis in this case.
R (DA) v Secretary of State for Work and Pensions [2019] UKSC 21	Guidance on article 14 aspects; quoted for the structure of the discrimination enquiry (four questions).	The court relied on Lady Hale’s summary to frame the article 14 analysis (ambit, status, differential treatment, justification).
R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26	Authoritative guidance on the proper approach to article 14 claims (four propositions on status, analogous situations, justification, margin of appreciation).	The court adopted Lord Reed’s four-proposition framework in its article 14 analysis.
Carson v United Kingdom (2010) 51 EHRR 13	Grand Chamber articulation of the article 14 approach (quoted in SC).	Referred to via SC for the accepted structure of the article 14 inquiry.
Stec v United Kingdom (2006) 43 EHRR 47	Proportionality approach under article 14 (relationship of proportionality to aim).	Cited as foundational authority on the proportionality limb of the article 14 test.
Thlimmenos v Greece (2000) (ECHR)	Illustration that treating differently similarly situated persons and treating the same differently can both raise discrimination questions (Thlimmenos principle).	Used to explain the distinction between primary discrimination and the Thlimmenos-type complaint in the court's analysis.
AT v Entry Clearance Officer of Abu Dhabi [2016] UKUT 00227 (IAC)	Upper Tribunal decision describing the historical operation of family reunion policy and earlier practice.	The court reviewed AT as part of the factual history and the genesis of guidance changes in 2016.
EK v Secretary of State for the Home Department [2024] EWCA Civ 1601	Referenced in a Note concerning the possibility that a family may begin a journey together and later send a child ahead.	Cited as factual support for a possible explanation of migration patterns (note only).

Court's Reasoning and Analysis

The court proceeded by first identifying the precise content of the Defendant's policy and then addressing the three grounds of challenge in turn, focusing on the proper legal tests and on the evidence before the courts below and on appeal. The reasoning has the following principal components (structured to reflect the judgment):

1. Description and legal character of the impugned policy.

   The court analysed the Rules and associated Guidance and concluded that, for family reunion applications by parents and siblings of a sponsor (including where the sponsor is a minor), the operative policy comprises the following elements: (a) reference to "exceptional circumstances"; (b) a test whether refusal would result in "unjustifiably harsh consequences"; (c) assessment whether those consequences would amount to a breach of article 8; and (d) the availability of "compassionate factors" permitting grants outside the Rules where unjustifiably harsh consequences exist but do not meet article 8. The judge emphasised that the real touchstone in these decisions is the evaluative assessment of whether refusal would produce unjustifiably harsh consequences and that the approach differs structurally from the automatic eligibility given to partners and minor children of adult sponsors.

2. Section 55 enquiry: scope and timing.

   The central legal question on ground 1 was whether the Secretary of State had, since section 55 came into force on 2 November 2009, discharged a function attracting that duty when she "maintained" the policy in question. The court adopted the legal framework that section 55 is a process duty requiring the Secretary of State to "make arrangements" to ensure immigration functions are discharged having regard to the best interests of children; that obligation extends to the making of Rules and guidance (as "arrangements") and requires identification and weighing of children’s best interests against countervailing considerations.

   The court distinguished between (i) a substantive, formal review process (in which ministers/Secretary of State consider options and reach a decision, including deciding to maintain the status quo) and (ii) mere acts of declining to initiate a review or ad hoc statements repeating an existing position. The Secretary of State will discharge a function for section 55 purposes when she actively engages in substantive reconsideration and makes a policy decision as a result; mere refusal to review does not itself amount to the discharge of a function attracting section 55, unless the refusal is the outcome of a substantive review process.

   Applying that approach, the court accepted evidence (including witness evidence from senior policy officials and the Chief Inspector’s report) that the Defendant had not, since 2009, undertaken a substantive review that would amount to discharging the relevant function; ministers had maintained a "red line" on child sponsors and had not instructed officials to conduct a section 55-form substantive policy review of the Rules. Consequently, as initially argued to the High Court, there was no demonstrated section 55 exercise of the kind required at the policy-formation stage after 2009.

3. Novel aspect of the Appellant’s successful appeal point on section 55.

   The Appellant advanced, in amended grounds on appeal, a related but distinct argument: that the Secretary of State's duty under section 55 required her at the point of the statutory onset (2 November 2009) to make arrangements ensuring that the family reunion policy itself had regard to children's best interests — i.e., that the “operation of the system” constituted a function/arrangement subject to section 55. The court accepted that argument: the statutory duty to make arrangements necessarily required that the Rules and guidance providing the framework for decisions should themselves have regard to children’s best interests. Because the Secretary of State had not performed such an assessment at or around the date section 55 came into force, the court held (on that ground newly advanced on appeal) that she was obliged to conduct a section 55 exercise as regards the family reunion policy for child refugees.

4. Discrimination (Article 14 + Article 8)

   On the discrimination claim, the High Court below had found there was no relevant differential treatment: it observed that under the Rules both child and adult refugees were not (under the Rules) entitled automatically to sponsor parents or siblings and that the policy applied equally in its formal terms. The appellate court concluded that this conclusion was incorrect in legal analysis: a child refugee seeking reunion with a parent is in an analogous situation to a parent seeking reunion with a minor child and the Rules treat those situations differently (child sponsor cases are subject to the unjustifiably harsh consequences test whereas the parent-of-adult-sponsor-versus-minor-child scenario is automatic). The appellate court found the differential-treatment point to be arguable but, for pragmatic reasons (including that the Secretary of State must in any event undertake the section 55 exercise and had publicly suspended the scheme pending review), declined to determine the question of justification itself. The court therefore gave directions allowing the parties to address whether the discrimination issue should be remitted or dismissed, rather than deciding justification on the existing record.

5. Irrationality (Wednesbury) challenge.

   The court treated the irrationality challenge with particular sensitivity to institutional competence and the high threshold for impugning policy judgments on Wednesbury grounds. The Secretary of State's assessment involved three principal evaluative elements: (a) whether the "anchor child" phenomenon exists, (b) whether easier family reunion would incentivise such hazardous journeys, and (c) whether any deterrent benefit outweighs harms caused to child refugees by a more restrictive policy. The court judged these to be evaluative matters within the margin of judgment of the Defendant and concluded that the Appellant had not discharged the burden of showing the policy was irrational. The court emphasised that refusal of family reunion under the policy would still have to conform to article 8 in particular cases and that the policy's evaluative structure did not render it irrational.

Holding and Implications

Holding:

The court granted the appeal in part. The central immediate holding was that the Defendant had not complied with the duty under section 55 of the Borders, Citizenship and Immigration Act 2009 in relation to the family reunion policy for child refugees as it stood at the relevant time; in consequence the Defendant is obliged to conduct a section 55 exercise in respect of that policy. The court therefore allowed ground 1 of the appeal (on the narrower basis advanced on appeal that the duty required an exercise at or about the commencement of s.55 in 2009 with regard to the operation of the system) and directed that the parties be given an opportunity to make submissions about the precise form of relief. The court did not make a final determination on the discrimination (ground 2) justification question and declined to quash the policy on irrationality grounds (ground 3 was dismissed).

Implications:

• The core practical consequence is that the Defendant must now conduct a section 55 exercise concerning the family reunion policy for child refugees (the court emphasised this is a process duty; the Defendant could, after a proper exercise, lawfully decide to maintain the policy if that is justified by the evaluation required under section 55).
• The court left open the appropriate form of relief and invited submissions on the form of order (for example, whether a declaratory order is appropriate and whether any remittal on the discrimination justification issue should be made), noting that the Defendant had in any event announced a suspension and review of the family reunion scheme on 4 September 2025 (as recorded in the opinion) which may affect relief.
• The court did not establish any new substantive right to automatic family reunion for parents and siblings of child refugees. It imposed a procedural obligation (section 55 exercise) to ensure that any policy is formulated and maintained with proper regard to children's best interests and that any future decisions remain open to challenge on public-law or Convention grounds.
• No final determination was made on whether the policy was discriminatory under article 14 (the court declined to resolve the justification limb on the existing evidence and invited submissions on remittal or other procedural disposition of that issue).

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