The King on the application of DM v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lavender |
| Judgment Date | 31 March 2023 |
| Neutral Citation | [2023] EWHC 740 (Admin) |
| Docket Number | Case No: CO/3534/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2023] EWHC 740 (Admin)
Mr Justice Lavender
Case No: CO/3534/2020
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Raza Husain KC, Jason Pobjoy and Eleanor Mitchell (instructed by Duncan Lewis) for the Claimant
Sonali Naik KC, Rebecca Chapman and Ali Bandegani (instructed by Baker & McKenzie LLP) for the Intervener
Lisa Giovannetti KC and Hafsah Masood (instructed by the Government Legal Department) for the Defendant
Hearing dates: 15 and 16 June 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 31 March 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
(1) Introduction
The claimant is an Eritrean national who was born on 10 October 2002. Although he is now an adult, he was a child when he left Eritrea in around March 2014, when he arrived in the United Kingdom on 7 May 2017, when he was granted refugee status on 9 November 2018, when his parents and five younger siblings applied on 8 September 2020 for entry clearance so as to be reunited with him in the United Kingdom and when his claim form was issued on 30 September 2020.
Entry clearance was refused by the Secretary of State on 4 June 2021, but on 10 March 2022 a First-tier Tribunal judge allowed the appeals by the claimant's parents and siblings. Accordingly, the claimant no longer pursues his application for judicial review of the Secretary of State's decisions to refuse entry clearance.
However, the claimant continues to apply for judicial review of what is said to be the Secretary of State's “ongoing decision that parents and siblings of refugee children will not be entitled to family reunion on the same basis as the spouses and children of adult refugees under the Immigration Rules”. He seeks a declaration that the Secretary of State has acted unlawfully in three respects:
(1) He contends that the Secretary of State has failed to comply with her duty (“the section 55 duty”) under section 55 of the Borders, Citizenship and Immigration Act 2009 (“the 2009 Act”).
(2) He contends that the Immigration Rules discriminate unjustifiably against refugees who are children, contrary to Articles 14 and 8 ECHR.
(3) He contends that the decision is irrational.
The claimant's application was stayed by order of Farbey J on 28 October 2020 pending the outcome of a similar application in a case in which permission to apply for judicial review was subsequently refused on the papers by Farbey J on 15 December 2020 and by Chamberlain J on 9 February 2021 after a hearing: JS v Secretary of State for the Home Department [2021] EWHC 234 (Admin) (“ JS”). Following the lifting of the stay on 23 September 2021 by order of Linden J and the amendment of the claim form and the statement of facts and grounds, on 7 December 2021 Bourne J refused permission to apply for judicial review on the papers, but Cotter J granted permission at a hearing on 22 February 2022.
The application for judicial review is supported by the United Nations High Commissioner for Refugees (“the UNHCR”), who was granted permission to intervene by order of 6 June 2022.
The application is resisted by the Secretary of State, who also asserts that the claimant lacks standing to bring the application, given that the First-tier Tribunal has now allowed the appeals against the Secretary of State's dismissal of the applications made by the claimant's parents and siblings. Although she resisted the application, the Secretary of State did not serve any evidence in advance of the hearing. I will deal later with the evidence served after the hearing.
(2) The Relevant Immigration Rules
The relevant rules are paragraphs 352A to 352G in Part 11 of the Immigration Rules, together with paragraph 277. In summary:
(1) in the case of refugees who are adults, the Immigration Rules provide that, subject to certain conditions, their partners and minor children may obtain leave to enter the United Kingdom for the purposes of family reunion; but
(2) in the case of refugees who are children, there is no provision in the Immigration Rules for their parents or minor siblings to obtain leave to enter the United Kingdom for the purposes of family reunion, with the result that those parents or siblings have to apply for leave to enter outside the Immigration Rules.
(2)(a) Background
It is perhaps worth stressing at the outset that this case is concerned with children who have been found to be refugees, i.e. children who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, are outside the country of their nationality or former habitual residence and are unable or, owing to such fear, are unwilling to avail themselves of the protection of that country. The number of children who apply for asylum in this country has grown considerably in recent years. I was not provided with figures, but I note the statistics set out in paragraph 104 of Saini J's judgment in R (MK) v Secretary of State for the Home Department [2020] 4 WLR 37 (“ MK”), according to which the number of asylum applications made by unaccompanied children was 1,265 in 2013 and rose to 3,496 in 2019. According to the UNHCR, 3,112 unaccompanied children were granted refugee status in the last two years.
Mr Husain was at pains to stress that the claimant was not inviting me to adjudicate on the United Kingdom's compliance with its international obligations. I will refer to certain international material merely by way of context. I note, however, that neither the 1951 Refugee Convention nor the 1967 Protocol provide for refugees to have a right to family reunion. As Sales LJ said in paragraph 13 of his judgment in Mosira v Secretary of State for the Home Department [2017] EWCA Civ 407:
“The Refugee Convention does not impose an obligation on Contracting States to grant leave to enter or leave to remain in order to achieve family reunion with a sponsor who has been granted refugee status in the host state, but the UN Human Rights Committee exhorts Contracting States to do this.”
On 25 July 1951 the Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons contained the following recommendation:
“THE CONFERENCE,
CONSIDERING that the unity of the family, the natural and fundamental group unit of society, is an essential right of the refugee, and that such unity is constantly threatened, and
NOTING with satisfaction that, according to the official commentary of the ad hoc Committee on Statelessness and Related Problems (E/1618, p. 40), the rights granted to a refugee are extended to members of his family
RECOMMENDS Governments to take the necessary measures for the protection of the refugee's family, especially with a view to:
(1) Ensuring that the unity of the refugee's family is maintained particularly in cases where the head of the family has fulfilled the necessary conditions for admission to a particular country;
(2) The protection of refugees who are minors, in particular unaccompanied children and girls, with special reference to guardianship and adoption.”
In July 1983 the UNHCR published the UNHCR Guidelines on Reunification of Refugee Families (“the UNHCR Guidelines”), paragraph 5 of which states as follows:
“In accordance with the principles referred to above, the following types of family reunification should receive the support of UNHCR:
(a) Reunification of the “nuclear family”, consisting of husband and wife and their dependent children. There is a virtually universal consensus in the international community concerning the need to reunite members of this family nucleus. The following points should be noted in this connection:
(i) Husband and wife. Besides legally married spouses, couples who are actually engaged to be married, who have entered into a customary marriage, or who have lived together as husband and wife for a substantial period can be considered eligible for UNHCR assistance. The same applies in principle to spouses in a polygamous marriage if it was validly contracted in the country of origin. On the other hand, estranged spouses who do not intend to live as a family unit in the country of asylum are not normally eligible for UNHCR assistance for reunification with each other, they may however qualify for reunification with their children.
(ii) Parents and children. Although some countries of asylum make a distinction between minor children and those who have come of age, it is UNHCR policy to promote the reunification of parents with at least those dependent, unmarried children, regardless of age, who were living with the parents in the country of origin.
(iii) Reunification of unaccompanied minor children with their parents and siblings. An unaccompanied minor child should be reunited as promptly as possible with his or her parents or guardians as well as with siblings. If the minor has arrived first in a country of asylum, the principle of family unity requires that the minor's next-of-kin be allowed to join the minor in that country unless it is reasonable under the circumstances for the minor to join them in another country. Because of the special needs of children for a stable family environment, the reunification of unaccompanied minors with their families, whenever this is possible, should be treated as a matter of urgency. Any unjustified delays should be reported to Headquarters. (…)
(b) Reunification of other dependent members of the family unit. It is the position of UNHCR that the...
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