I’m a bit behind the times at the moment for all sorts of reasons (giving up blog, lots happening in immigration law, having first baby) and this is one of the important cases that slipped under my radar while I was away.

In the case of R (on the application of TS) v Secretary of State for the Home Department [2010] EWHC 2614 (Admin) (26 October 2010) Mr Justice Wyn Williams addressed the nature and effect of the duty to safeguard and promote the welfare of children set out in section 55 of the Borders, Citizenship and Immigration Act 2009.

It is critical reading for anyone representing either children or parents. Salient points include the following:

• The duty is mandatory and requires the decision-maker to embark upon a sufficient and proper decision making process so as to discharge the duty with an open mind (para 24)
• In the written decision produced by the decision maker he does not have to refer, expressly, to the relevant statutory duty; however the terms of the written decision must be such that it is clear that the substance of the duty was discharged (para 24)
• The duty applies when considering whether removal should be directed (and in any exercise of an immigration function) (para 24)
• The statutory guidance must be applied unless reasons are given (para 32)
• The statutory guidance defines safeguarding and promoting the welfare of children and includes (para 27)
  • protecting children from maltreatment;
  • preventing impairment of children’s health or development (where health means ‘physical or mental health’ and development means ‘physical, intellectual, emotional, social or behavioural development’);
  • ensuring that children are growing up in circumstances consistent with the provision of safe and effective care; and
  • undertaking that role so as to enable those children to have optimum life chances and to enter adulthood successfully.
• The duty makes the best interests of children a primary consideration, albeit not the only consideration (para 30 and 33)

This can be used in applications for judicial review but can also be pleaded in tribunal cases, on the ‘not otherwise in accordance with the law’ ground of appeal. It will be interesting to see how far, if at all, the tribunal is willing itself to take into account the section 55 duty, but it seems more likely to me that decisions which entirely fail to have regard to it will be allowed as being unlawful, requiring them to be re-made rather than leading to grants of status.