Upper Tribunal dismisses judicial review in case of parents seeking to reunite with young children 

The Upper Tribunal has recently dismissed a judicial review action involving a Turkish Kurdish family who were separated when attempting to cross the Channel. Before you continue reading this, I would recommend reading Colin’s excellent article on the interim order decision by the Court of Appeal, where he sets out the background to this case in detail. The case is unreported, but is R (EK & Others) v Secretary of State for the Home Department, JR-2024-LON-002556, with Kent County Council as an interested party.

Background

In brief, this case concerns parents seeking to reunite with their young children (aged nine and six) who are in the UK. The family were separated during an attempted Channel crossing in July 2024, with the children arriving in the UK and the parents remaining in France.

On 21 August, the parents made an application for entry clearance to join the children in the UK. No real progress was made. Because of this, on 30 September, the parents commenced judicial review proceedings asking for an order that they be admitted to the UK, as well as a declaration that the Home Office’s ongoing failure to admit the parents was a breach of articles 3, 8 and the section 55 duty.

An interim order was initially granted by the Upper Tribunal but the Home Office successfully challenged this and the Court of Appeal set the order aside on 20 December 2024. On 30 December 2024 (four months after the original applications were submitted), the Home Office issued (unsurprisingly) refusals of entry clearance for the parents.

The Home Office relied on the Court of Appeal decision and essentially argued that they do not want to create a precedent and open a route for children to be able to sponsor parents as this will create a pull factor and put more children at risk. The decision also said that it is in the children’s best interests to return to France and be with their parents. Appeals were lodged and are still pending before the First-tier Tribunal.

Tribunal refused consent to withdraw

In early January, the parents sought to withdraw the judicial review action in light of the Court of Appeal’s decision to refuse interim relief, as well as the fact that there was now a pending appeal before the First-tier Tribunal. They essentially argued that the action was now academic as interim measures had been refused and that the case could be dealt with by the First-tier Tribunal.

The Home Office disagreed and accused the parent’s representatives of gaming the system, essentially saying that they were seeking to avoid another negative decision. The Home Office also argued that the case raised an important point of public interest, concerning the behaviour of smugglers but also of parents seeking to use their children to enter the UK where they are in a “safe” country, like France.

Although the tribunal did not accept that there had been any abuse in the process, consent to withdraw the judicial review was refused on two grounds. First, the court found that the case raised points of public interest as argued by the Home Office. Second, it found that a substantive decision on the judicial review might assist the local authority in the family law proceedings (in terms of the assessment of the children’s best interests and whether reunification in France is a possibility).

On this point, the court made some comments regarding the parents’ conduct and how this was perhaps obstructing reunification in France. The tribunal refused consent and went on to determine the substance of the judicial review, namely did the Home Office breach articles 3 and 8 by failing to admit the parents to the UK.

Failure to admit parents not a breach of articles 3 and 8  

Unsurprisingly, the tribunal largely relied on the findings of the Court of Appeal in dismissing the case.

The tribunal gave significant weight to the evidence put forward by the Home Office in the Court of Appeal. As summarised by Colin, witness statements by senior government officials made the point that allowing the parents to enter the UK would create an incentive for smugglers to put more unaccompanied children in small boats.

Evidence was also submitted to show that the French government agreed with this position. The tribunal relied on the Court of Appeal’s judgment to find that the delay on the Home Office’s part in facilitating entry for the parents was not unreasonable, considering the prospect of the family reuniting in France in the foreseeable future (albeit acknowledging that this would be delayed by the Family Court and First-tier Tribunal proceedings).

On this basis, the tribunal found that the Home Office had not breached article 8 by failing to facilitate entry of the parents as public interest considerations prevailed.

The tribunal, again relying on the Court of Appeal’s assessment, also found that any distress to the children caused by the Home Office’s (in)action did not reach the article 3 threshold.

Conclusion

In terms of the merits of the case (on articles 3/8), this tribunal decision does not add much to the earlier Court of Appeal decision on interim measures. What is quite significant, in my view, about this case is the fact that the Home Office wanted to make a point in court and they succeeded.

The tribunal’s decision focuses on the line set out by the government, namely that if you let these parents in, smugglers will start putting unaccompanied children on small boats. Although the Court of Appeal acknowledged that the Home Office evidence on this point was “no doubt speculation”, ultimately both the court and tribunal seemed to have considered this as the most significant factor in both decisions.

The government arguably took a risk by pursuing litigation up to this point (where they could have quietly allow the parents to enter last summer) but this seems to have paid off as both the court and tribunal agreed with their line. They also managed to get some positive coverage in the Daily Mail.

On the other hand, although reunification for this family in France now appears to be a more realistic possibility, the fact remains that these young children have now been separated from their parents for more than six months and they are unlikely to see their parents again in the immediate to medium term future.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

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