CAO v Secretary of State for the Home Department
| Jurisdiction | Northern Ireland |
| Judge | McCloskey LJ |
| Judgment Date | 23 February 2023 |
| Neutral Citation | [2023] NICA 14 |
| Date | 23 February 2023 |
| Court | Court of Appeal (Northern Ireland) |
1
Neutral Citation No: [2023] NICA 14
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: McC12081
ICOS No:
Delivered: 23/02/2023
IN HIS MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
___________
ON APPEAL FROM THE UPPER TRIBUNAL, IMMIGRATION
AND ASYLUM CHAMBER
___________
CAO
Appellant:
v
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent:
___________
Mr Mark Mulholland KC and Mr Erik Peters (instructed by Wilson Nesbitt Solicitors) for
the Appellant
Mr Tony McGleenan KC and Mr Philip Henry (instructed by the Crown Solicitor’s
Office) for the Respondent
___________
Before: McCloskey LJ, Horner LJ and Fowler J
___________
INDEX
SUBJECT PARAGRAPH No
Anonymity 1
Introduction 2
Section 55 3
The Asylum Application and Decision 4-10
The History of these Proceedings 11-16
Section 55 Unpacked 17-18
“Every Child Matters: Change for Children” 19-30
The Section 55 Jurisprudence 31-53
The Decision in Arturas 54-77
The Art 8 ECHR Procedural Dimension 78 -80
The Consequences of the Section 55(3) Violation 81-90
Some Discrete Issues 95
Order 96
2
McCLOSKEY LJ (delivering the judgment of the court)
Anonymity
[1] The appellant and her children have been granted anonymity throughout the
entirety of these proceedings and continue to enjoy this protection. Accordingly,
there must be no publication of their names or of any information which could
reasonably lead to any of them being identified.
Introduction
[2] Section 55 of the Borders, Citizenship and Immigration Act 2009 (“section 55”
and “the 2009 Act” respectively) is an incontestably important member of a suite of
statutory provisions designed to protect one of the most vulnerable cohorts in
society, namely children. This appeal, not for the first time, requires the court to
examine the duties imposed by section 55, specifically subsection (3), on the
Secretary of State for the Home Department (the “Secretary of State”) and the two
tiers of the Immigration and Asylum Chamber. This, as will become apparent, is a
question which has been previously considered by the courts and tribunals of the
jurisdictions of Northern Ireland, Scotland and England & Wales. A unanimous
approach has not emerged. In particular, the Upper Tribunal has decided recently
that there are material differences between this jurisdiction and that of England and
Wales and Scotland in the construction and application of section 55. This is a
significant development which, in the context of a United Kingdom tribunal (both
tiers), gives rise to a divergence between at least two parts of that single unitary
state.
Section 55
[3] Section 55 of the Borders, Citizenship and Immigration Act 2009 (hereinafter
“section 55”) lies at the heart of these proceedings. Under the rubric of “Duty
regarding the welfare of children” it provides as follows:
“(1) The Secretary of State must make arrangements for
ensuring that—
(a) the functions mentioned in subsection (2) are
discharged having regard to the need to safeguard
and promote the welfare of children who are in the
United Kingdom, and
(b) any services provided by another person pursuant
to arrangements which are made by the Secretary of
State and relate to the discharge of a function
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mentioned in subsection (2) are provided having
regard to that need.
(2) The functions referred to in subsection (1) are—
(a) any function of the Secretary of State in relation to
immigration, asylum or nationality;
(b) any function conferred by or by virtue of the
Immigration Acts on an immigration officer;
(c) any general customs function of the Secretary of
State;
(d) any customs function conferred on a designated
customs official.
(3) A person exercising any of those functions must, in
exercising the function, have regard to any guidance given
to the person by the Secretary of State for the purpose of
subsection (1).
(4) The Director of Border Revenue must make
arrangements for ensuring that—
(a) the Director's functions are discharged having
regard to the need to safeguard and promote the
welfare of children who are in the United Kingdom,
and
(b) any services provided by another person pursuant
to arrangements made by the Director in the
discharge of such a function are provided having
regard to that need.
(5) A person exercising a function of the Director of
Border Revenue must, in exercising the function, have
regard to any guidance given to the person by the
Secretary of State for the purpose of subsection (4).
(6) In this section—
“children” means persons who are under the age of 18;
“customs function”, “designated customs official” and
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Upper Tribunal (Immigration and asylum chamber), 2024-01-23, UI-2022-000406
...failure, the tribunal has the power to remedy matters by judicial investigation and case management, as stated at [94] of CAO v SSHD [2023] NICA 14. Notwithstanding that the duty is the respondent’s, the appellant sought to adduce 4 items of evidence [the main thrust of these, however, and ......