The Supreme Court has held that express reference to the Home Secretary’s guidance on her duty under section 55 of the Borders, Citizenship and Immigration Act 2009 is not required in a decision letter in order to demonstrate that the duty has been complied with. The court also held that the section 55 duty does not apply to the First-tier Tribunal which will instead consider the best interests of the child within an article 8 assessment. This case is CAO (Respondent) v Secretary of State for the Home Department (Appellant) (Northern Ireland) [2024] UKSC 32.

Before now there were conflicting decisions from different jurisdictions, meaning that the legal position in England and Wales and Scotland differed to Northern Ireland on this point and this is obviously why the Supreme Court has stepped in.

For anyone who needs a reminder, the section 55 duty refers to the need for those exercising immigration, asylum, nationality and customs functions to safeguard and promote the welfare of children in the UK. At section 55(3) it states that a person exercising any of those functions “must, in exercising the function, have regard to any guidance” issued by the Home Secretary.

Background

The respondent is a Nigerian national who arrived in the UK in September 2018 with her 16 year old son and 12 year old daughter. On 8 November 2018 they applied for asylum on the grounds of domestic violence experienced by the respondent and a fear that the daughter would be expected to undergo female genital mutilation if returned to Nigeria.

The application was rejected on 10 April 2019 and the Home Secretary held that the family was also not entitled to humanitarian protection and that return to Nigeria would not breach their rights under the European Convention on Human Rights or the Human Rights Act 1998. The refusal letter had a section called “Section 55 Consideration” which stated that the Home Secretary had “taken into account the need to safeguard and promote the welfare of children in the United Kingdom in accordance with the Secretary of State’s duty under section 55 of [the 2009 Act]”. The guidance was not mentioned.

The respondent appealed the refusal to the First-tier Tribunal and was represented at the hearing, the Home Secretary was not. On 25 February 2020 the appeal was dismissed, the tribunal finding significant inconsistencies in the respondent’s account. The tribunal also referred to the country policy and information note “Nigeria: Female Genital Mutilation” and found that the threat of female genital mutilation was low for girls over five years old and the respondent’s objection to it would act as a “significant protective factor”.

The tribunal also held that the police would provide protection if asked and that internal relocation was an option for the family. The tribunal addressed article 8 at the end of the decision, which included the conclusion that “it is in the best interests of the children to remain with their mother”. The appeal was dismissed in its entirety.

The First-tier Tribunal and the Upper Tribunal refused permission to appeal to the Upper Tribunal. The respondent then sought judicial review of the refusal of permission (known as a Cart judicial review), raising for the first time the argument that there was a failure to comply with section 55(3) and the associated guidance. It was argued that the First-tier Tribunal erred “by ignoring the Secretary of State’s failure to comply with the Guidance and section 55(3) and in assessing the respondent’s daughter’s best interests without relevant evidence which the Secretary of State had a duty to obtain from the daughter pursuant to the Guidance and section 55(3)”.

The Upper Tribunal and the Home Secretary agreed to concede the judicial review, which meant that the decision refusing permission to appeal was quashed and was to be remade by a different judge. A rolled up hearing took place and on 25 March 2022 the Upper Tribunal granted permission to appeal but then went on to dismiss the appeal on the grounds that the First-tier Tribunal had not committed any arguable or material error of law. On the section 55 point, the Upper Tribunal noted that this had not been argued at the First-tier Tribunal and it was not for the tribunal to go looking for issues not raised by the respondent, who had been legally represented.

The respondent appealed to the Court of Appeal in Northern Ireland.

Conflicting legal positions

The legal conflict is quite neatly summarised in our write up of the Upper Tribunal’s decision in Arturas (child’s best interests: NI appeals) Lithuania [2021] UKUT 237 (IAC). Arturas said that in cases in England, Wales and Scotland where the Home Office had breached section 55(3) through a failure to mention the guidance, consideration of the issue of the best interests of the child could be carried out by the tribunal as part of their decision under article 8.

Arturas said that the position in Northern Ireland was different because of the case of JG v Upper Tribunal Immigration and Asylum Chamber [2019] NICA 27 which held that the tribunal could not make such a decision on the best interests of the child. The reasons given by the court in JG included reference to the difficulties that such decision making would involve because of the need of the court or tribunal to comply with the guidance:

The feasibility of the court or tribunal concerned, in the wake of a demonstrated breach of the section 55(3) duty, actually pursuing any of the enquiries or steps specified in SSHD’s statutory guidance appears to this court to be largely theoretical. Steps could of course be taken to ensure that the affected child’s/children’s views are considered via separate representation, reception of new evidence and a further hearing. But this course would inevitably generate much litigation delay and increased expense.

Court of Appeal’s decision

Back to CAO, the appeal was heard in the Court of Appeal in Northern Ireland by McCloskey LJ, the same judge who had decided JG. He explained why he did not agree with Arturas and believed his previous analysis was correct. The respondent’s appeal was allowed, the decision summarised as follows at paragraph 35 of the Supreme Court’s judgment:

35. In McCloskey LJ’s view, the omission of the Secretary of State to refer in the Decision Letter in terms to her duty under section 55(3) and to the Guidance meant that the inference had to be drawn that the Secretary of State had breached that duty. This had the consequence that the Secretary of State’s decision was in breach of her duty under section 6(1) of the HRA to act compatibly with Convention rights, in that the decision violated article 8 because it was not “in accordance with the law”; the Secretary of State failed properly to treat the best interests of the respondent’s daughter as a primary consideration; and her decision-making did not satisfy the procedural requirements implicit in article 8. This incompatibility with the article 8 rights of the respondent’s daughter had not been remedied by either the FTT or the Upper Tribunal in their decisions, since neither of them had “engaged with the Secretary of State’s breach of the section 55(3) duty”; and there was no basis for concluding that this breach of statutory duty had no material impact on the best interests assessment conducted by those tribunals in relation to the daughter: para 91.

The Supreme Court

The Home Secretary appealed to the Supreme Court. In its judgment, the Supreme Court referred to ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166 and Zoumbas v Secretary of State for the Home Department [2013] UKSC 74 both of which make clear that the best interests of the child are to be treated as a primary consideration when making decisions on article 8.

Also in relation to ZH (Tanzania), the Supreme Court said that Lady Hale’s comment at paragraph 24 was obiter, namely that “any decision which is taken without having regard to the need to safeguard and promote the welfare of any children involved will not be “in accordance with the law” for the purpose of article 8(2). Both the Secretary of State and the tribunal will therefore have to address this in their decisions.”

The court said that it had heard no argument on the point, and it should no longer be followed [paragraph 53]. The reasoning was that this comment was in relation to section 55 and the duty does not apply to the tribunal which is instead subject to the duty under section 6 of the Human Rights Act to decide appeal in a way that is compatible with human rights. Where article 8 is raised in the context of a child that then includes a requirement to treat the interests of that child as a primary consideration [paragraph 54].

On the point as to whether it can be considered that Home Office decision makers have complied with section 55(3) in cases where they have not expressly referred to the guidance, the Supreme Court concluded that “substance prevails over form” [at 67]. After considering the relevant authorities the court said that “The authorities on these similar “have regard” duties show that, in accordance with Parliament’s intention in enacting them, what is important in terms of compliance is that the decision-maker does indeed have regard to the substance of the matters to which the duty refers.”

The court did make clear that “this does not mean that the Secretary of State and his or her officials can disregard the duty under section 55(3) with impunity” and then proceeded to set out a variety of potential issues and how they could be challenged.

In relation to the respondent’s case, the Supreme Court held that there was substantive compliance with the guidance and no breach of section 55(3) by the Home Secretary. The court also concluded that the First-tier Tribunal had properly applied article 8 including treating the best interests of the respondent’s daughter as a primary consideration, and the tribunal had no obligation to go beyond the case presented to it.

Conclusion

I was thinking as I was going through this that it seems a bit strange to me that the Home Office let this all go on for so long rather than amend their template letters to include explicit mention of the section 55 guidance. The Supreme Court made the same point at paragraph 82: “it would be desirable and not unduly burdensome for the Secretary of State and his or her officials to include reference to the Guidance in their decision letters, even though it is not fatal as a matter of law if they do not”.

The Supreme Court finished with what is probably the same thought many of you have had in reading this, which is that the case has taken several years to reach its conclusion and the situation for this family may now have materially changed such that a fresh claim may now be appropriate.

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