The second part of a challenge to the family reunion rules that exclude child refugees from bringing their family to the UK has been dismissed by the High Court. The case is R (DM) v Secretary of State for the Home Department (United Nations High Commissioner for Refugees intervening) [2024] EWHC 967 (Admin) and we previously wrote up the first part of the case, which was also unsuccessful. 

The challenge

There is provision within the immigration rules for adult refugees to bring their partner and children to the UK, but there is no equivalent provision for child refugees to reunite with their family. Last year, the High Court dismissed the challenge but one ground of challenge was adjourned and this is the subject of this new decision.

The adjourned ground was “a challenge to the rationality of what was described in the claim form as the defendant’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 irrationality challenge was broken down into three parts. The first was the Home Secretary’s decision to exclude child refugees from the family reunion route when introducing it in 2000. At [56] the judge said that while he could see “ample grounds” for people to disagree with the decision made, it was not irrational for the Home Secretary to have made it.

The judge explained this by saying that it was not irrational that the Home Secretary at the time considered that including child refugees in the rules created a risk of incentivising families to send unaccompanied asylum seeking children to make the journey to the UK. The judge then went on to consider whether it was irrational for the Home Secretary to then conclude that such a large number of children would be incentivised to make the journey that it outweighed the other side of the balance (i.e. allowing refugee children to be with their family).

It was argued on behalf of the claimant that it was irrational for the Home Secretary to make this decision without any evidence as to the likelihood of harm. The judge accepted the argument made by the Home Secretary that this was a judgement made in the context of there being a (very difficult to access) route for these children where they can rely on article 8.

The second part of the rationality challenge was to the decisions made by Home Secretaries since 2015, and potentially earlier, not to review the immigration rules and consider providing a route to family reunion for child refugees. This argument was rejected on the basis that the Home Secretary “has a discretion whether or not to initiate active consideration of policy changes in relation to all aspects of immigration policy” and that the evidence to support consideration of a policy change was not “such that no rational Secretary of State could reach the contrary decision”.

The third part of the challenge was to the immigration rules themselves. The judge dismissed the irrationality arguments here for the same reasons given for the previous two matters. The judicial review was dismissed.

Conclusion

A properly functioning family reunion system is a vital part of any system purporting to provide “safe and legal routes” as an alternative to people making dangerous journeys to the UK. The exclusion of child refugees from accessing family reunion within the immigration rules is one of the UK’s more cruel policies, in a crowded field. Some of the comments in the decision around incentives for child refugees to come to the UK are contradicted by evidence which goes unmentioned. It appears from the end of the judgment that the claimant may seek permission to appeal to the Court of Appeal.

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