An exploration of the different entitlements to family reunion for parents and siblings of refugee children and partners and children of adult refugees was recently heard in a judicial review that highlights the barriers to family reunions in the immigration rules and the importance of safeguarding refugee children as increasing numbers enter the UK. The case is R(DM) v Secretary of State for the Home Department [2023] EWHC 740 (Admin).

Background

DM is an Eritrean national, born on 10 October 2002. He was a child when he left Eritrea in around March 2014. He arrived in the UK on 7 May 2017 and was granted refugee status on 9 November 2018.

Two years passed and on 8 September 2020, when DM learnt that it was possible to apply for family reunion, his parents and five younger siblings made their applications. They were refused on 4 June 2021, but a First-tier Tribunal judge subsequently allowed their appeals. On 7 July, they were granted leave to remain in the UK in line with DM, until 8 November 2023.

As a result of his experiences, DM suffers from post-traumatic stress disorder and depression. His witness statements speak in “graphic terms” of the distress caused by being separated from his family and by the application and appeal process.  

The judicial review

DM continued an application 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”. The immigration rules contain what DM characterised as a “straightforward path” towards reunion in the UK of adult refugees with their partners and/or minor children. But no such path for the reunion of child refugees with their parents and/or siblings exists. Such applications have to be made outside of the rules instead, as in this case. He sought a declaration that the Secretary of State acted unlawfully in three respects:

1. Failing to comply with her duty under section 55 of the Borders, Citizenship and Immigration Act 2009
2. The immigration rules discriminate unjustifiably against refugees who are children, contrary to Article 14 and Article 8 of the European Court of Human Rights
3. The decision is irrational

The first two grounds were dismissed and the third was adjourned because the judge considered that neither party engaged with the relevant decision. The decisions on each ground are an interesting read and the judge goes into depth about when and how petitions to amend the rules have been made over the years, confirming that family reunion remains an important topic today:

“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”.

No change to the immigration rules

This ground was dismissed on the basis that the Home Secretary has not since the Borders, Citizenship and Immigration Act 2009 came into force exercised the relevant section 55 function. Section 55 requires arrangements to be made to safeguard and promote the welfare of children when discharging immigration, nationality and general customs functions.  

There has not been any material change in the content of the relevant immigration rules since 2000, well before section 55 came into force. DM’s case, therefore, was that the Secretary of State failed to comply with section 55 when “maintaining” its position on family reunion after section 55 came into force. The Secretary of State would need to give active consideration to changing the immigration rules to create a family reunion route for refugee children in order to be able to discharge her duty under section 55 by actively engaging in consideration of the issues the rules may bring about.

Several family reunion reports and reviews have been published across the years, questioning the government’s policy. On 26 July 2016, the House of Lords European Union Committee published its second Report of Session 2016-17, Children in crisis: unaccompanied migrant children in the EU, which found no evidence to support the argument that the prospect of family reunion could encourage families to send children to Europe unaccompanied to act as an “anchor” for other family members. The report urged the government to reconsider its position, but the government said:  

“Our family reunion policy meets our international obligations and we believe it strikes the right balance between reuniting families and ensuring that our Rules are not more generous than other European countries. We believe that allowing children to sponsor parents under the rules would create perverse incentives for them to be encouraged, or even forced, to leave their family and risk hazardous journeys to the UK to sponsor relatives. This plays into the hands of criminal gangs who exploit vulnerable people and goes against our safeguarding responsibilities.”

In her response to DM’s pre-action protocol letter in September 2020, the Secretary of State added that “the policy is not designed to keep child refugees apart from family members, but in considering any policy we must think carefully about its potential impacts”. Some might argue that this constitutes active consideration by the Secretary of State. But the section 55 duty should not be triggered every time a claimant sends a letter contending that the Secretary of State should change her policy. Applying, defending or declining to change a policy in this way should not be treated as triggering, in effect, a re-making of that decision.

And this is made clear by the Chief Inspector for Borders and Immigration. In 2018 he suggested that family reunion policy development had “ceased to be a priority” and at the time of his 2020 report, the UK was the only EU Member State which did not allow a child refugee to sponsor family members. In this report, the Inspector reported that while Home Office staff were considering the issue of child sponsors, “child sponsors was a ‘ministerial red line’”.

Age discrimination

The judge did not accept that the matters complained of in this case constituted a difference of treatment for the purpose of Article 14 age discrimination. This ground was dismissed because differential treatment was not seen as relevant: neither child nor adult refugees are permitted under the current immigration rules to sponsor applications for leave to enter from parents or siblings.

An argument based on discrimination could only have been made in the context of Thlimmenos discrimination, but that was not how DM put his case. Instead, he contended that child and adult refugees are “similarly situated” in terms of the importance of reunion with their immediate family, but that the members of that immediate family are relatively different. For the adult refugee immediate family consists of a partner and minor children. For a child refugee immediate family consists of parents and siblings.

But the “nuclear family” of a child or adult refugee can be equally different for some adult and child refugees as it will be similar for others. At age 18 an individual becomes an adult refugee. But they may still be wholly dependent on their parents, for example having lived with them in their country of origin. They may also not be married or have a partner.

The concept of the nuclear family is not clear-cut. Not only should like situations be treated as alike but different situations should be treated differently. Failing to treat different people differently amounts to discrimination unless there is an objective and reasonable justification.

There is no presumption as to the continuation of a certain type of (if any) family life after a person turns 18. The UN Refugee Agency regards dependent children as part of the nuclear family no matter their age. It also suggests that family unity requires the reunification of adult refugees with their parents if their parents are dependent on them.

And various proposals in parliament have already been made over the years, under which both adult and child refugees would be able to sponsor entry clearance applications for parents and siblings. Other proposals suggested some unmarried children be treated as part of an adult refugee’s nuclear family.

Irrationality

This argument was adjourned because neither part engaged with the relevant decision that in 2000 the immigration rules were changed to include the rules which are impugned in this case. Parties focused on the period since November 2009 (post-section 55 implementation), during which the judge found that the Home Secretary gave no active consideration to changing relevant immigration rules.

The court’s function is limited to reviewing the lawfulness of decisions made by the Secretary of State. Usually, therefore, the court would expect to receive evidence on the Secretary of State’s assessment of the relevant evidence. The judge said:

“In his written submissions after the hearing, the claimant submitted, inter alia, that it was not open to the Secretary of State to insulate herself from or to circumvent her duty under section 55 of the 2009 Act by simply refusing to amend the relevant immigration rules. However, I have not heard submissions from both parties on this issue, which would arguably require the claimant to apply for permission to amend his grounds so as to challenge the Secretary of State’s decision(s) not to, and/or refusal and/or failure to, give active consideration to the possibility of changing the immigration rules so as to provide a route to family reunion for child refugees.”

A decision on this ground was adjourned to allow the claimant to pursue a challenge of this kind if they so wish.

This judgment is lengthy, and much of DM’s arguments were dismissed. But it also ultimately highlights the work done by many over the years to petition the government, raise parliamentary bills, commission reports, and ultimately question the lack of sufficient family reunion routes in the immigration rules. It makes clear that this government has not changed its stance on the issue for several years and is unlikely to do so any time soon.