Asylum Aid wins High Court challenge to the statelessness family reunion rules

Asylum Aid’s legal challenge to the lawfulness of the statelessness family reunion rules has been comprehensively upheld. The judgement was handed down by the High Court on 14 February and has not been appealed. The case is Asylum Aid v Secretary of State for the Home Department [2025] EWHC 316 (Admin). The High Court has found the rule change that brought statelessness family reunion into Appendix FM to be unlawful, upholding three of the four grounds that were argued. You can read the background to the challenge in this January article.

Asylum Aid submitted comprehensive evidence of the adverse impact of Appendix FM on the families of stateless people and the hurdles they would face; the burdensome eligibility requirements and fees; the lack of legal advice for applications and fee waivers; the difficulties posed by being placed on a ten year route to settlement and the imposition of a no recourse to public funds condition even if successful under the exceptional circumstances provision in Appendix FM.

Irrationality

Asylum Aid argued that the change to the family reunion provisions for stateless people – from a rule which recognised the unique position of stateless sponsors to a rule that treated them the same as any other sponsor, including British citizens – was irrational. The rule change failed to recognise that a stateless person is in a uniquely vulnerable position. It made sense to have a bespoke rule that recognised this, and it was irrational to replace it with a general rule which failed to treat unlike cases differently.

The judge agreed and went through the reasons that he found the rule change to be irrational. The following points are particularly worth noting:

That there was “no recognition…..that stateless persons and their dependants are a particularly vulnerable group recognised as such under international law.”
That civil servants had “understated the core requirements of Appendix FM to a very considerable degree.”
That to treat all applicants the same, whether they were a stateless child abroad or a non-stateless person in the UK, was irrational: “Yet the whole group has been treated in the same way, without any objective and reasonable justification.”
That to treat dependants of stateless people the same as dependants of British citizens and settled people was not reasonable: “..cases are being treated as equal when they are not, without any objective and reasonable justification.”
That the Home Office had failed to recognise that the closest comparator for stateless persons was refugees: “In my judgment it was incumbent on the department to acknowledge that refugees were the closest comparator group, because other things being equal like cases should be treated alike, and then provide an objective and reasonable justification for any differentiation.”
Proportionality – “In my judgment, the Defendant has not justified the very significant impact on the vulnerable dependants of stateless persons, in particular children.”

The judge rejected the Home Office’s argument that the harshness of the change was mitigated because the applicants could in any event avail themselves of the exceptional circumstances proviso in Appendix FM:

Why require a child to go through a lengthy and stressful application process under Appendix FM, assuming that with appropriate assistance she or he works out how to apply, when the highly likely upshot is that the application will eventually succeed? In my judgment, the imposition of this unnecessary and close to pointless requirement is a paradigm example of a perverse policy.

The only ground that was not upheld by the High Court was incompatibility with international law obligations to stateless persons. In this case the judge found that the UK was not obliged under international law, in particular the Statelessness Conventions of 1954 and 1961, to facilitate family reunion for stateless persons in the same manner that was possible before the rule change.

Breach of the Public Sector Equality Duty under s 149 Equality Act 2010

Asylum Aid successfully argued that there were three failures of the Public Sector Equality Duty: a failure to consider statelessness itself as a protected characteristic, a failure to identify the true nature and extent of the discriminatory impact on stateless people and their families, and the failure to identify the disproportionate impact of that discrimination on women and children.

On this ground the judge made an important finding that just as nationality is a protected characteristic, lack of nationality must also be so. Statelessness was therefore found to be a protected characteristic for the purposes of the Equality Act. This important finding has wider implications for the protection of stateless people in the UK.

Breach of s 55 of the Borders, Citizenship and Immigration Act 2009

The judge found that the new rules did not take into proper consideration the impact on children of the rule change:

It is in that context that the section 55 duty properly falls to be considered. The existence of a route that is technically available, however difficult it may be to fulfil its conditions, however pointless it may be to require a child to pass through these hoops, and whatever the disadvantages that may flow to the child even if those conditions are somehow met, does not in my judgment fulfil the requirements of section 55.

Next steps

The rule change has been found to be unlawful, and we await the response from the Home Office as to how they intend to give effect to the judgment and remedy the unlawfulness.

In the three day hearing in the High Court Asylum Aid was represented by Freshfields acting pro bono and counsel Stephanie Harrison KC and Emma Fitzsimons of Garden Court Chambers. The challenge was also supported by witness statements from individuals at the Liverpool Law Clinic (which also gives free specialist advice on statelessness) and Islington Law Centre.

Asylum Aid’s statelessness work

Asylum Aid has a long history of working with stateless people in the UK. It provides specialist advice through its statelessness project that works with city law firms who give their time pro bono. This is an area where there is no legal aid in England and Wales and where expertise is hard to come by. Statelessness cases can be referred directly to the project.

More information about statelessness in the UK and Asylum Aid’s work on statelessness is available on Asylum Aid’s website. We regularly deliver training and contribute to policy advocacy to improve the position of stateless people in the UK. We have recently updated the training module on Statelessness on the Free Movement website which will give practitioners a good introduction to making a statelessness application.