In CAO (Respondent) v Secretary of State for the Home Department (Appellant) (Northern Ireland) [2024] UKSC 32, the Supreme Court considered an appeal from the Home Secretary against a decision of the Northern Ireland Court of Appeal.
In their co-authored judgment, Lord Sales and Dame Siobhan Keegan provide a rich analysis of how the courts should consider the welfare of children in an immigration context. In doing so, they clarify the meaning and effect of Section 55 of the Borders, Citizenship and Immigration Act 2009 ("Section 55") and its interaction with Article 8 of the European Convention on Human Rights ("Article 8"). The judgment provides a guide for how the appellate courts should assess decision-making by the Secretary of State, her officials, and the First-tier Tribunal.
Legal framework
Section 55(1) requires the Secretary of State to ensure that any immigration functions are discharged in consideration of a need to safeguard and promote the welfare of children. Section 55(3) has a related obligation for civil servants delivering immigration functions, who must have regard to guidance issued by the Secretary of State.
Article 8 provides a right to respect for private and family life, which extends to the welfare of children. It is a qualified right, with interference permitted only if in accordance with the law and being necessary in a democratic society.
Factual background
CAO is a Nigerian national who entered the UK on 25 September 2018. She was accompanied by her son (then 16) and daughter (then 12), who also have Nigerian nationality. On 8 November 2018 she applied for asylum for herself and her children. In that application, she alleged that her husband was abusive to her and that he sought to enforce female genital mutilation ("FGM") on their daughter. Were the family to return to Nigeria, the respondent alleged that her husband would find her and their children.
Procedural background
The Secretary of State refused the application by letter on 10 April 2019. It was disputed that there was a real risk of domestic abuse, that respondent could not elude her husband, or that the Nigerian police could not protect her. The risk of FGM was not considered real on the basis that it was not assessed as culturally important to her husband; it had also not been discussed for 12 years. Again, in any case the Secretary of State determined that she could evade him or rely on local police. The refusal letter contained a section which addressed the impact of the decision on the children's well-being but it failed to explicitly cite Section 55(3) or any guidance.
The First-tier Tribunal ("the FTT") dismissed an appeal from the Respondent on 25 February 2020. It ruled that she had been domestically abused, but that if she returned to Nigeria she was not subject to a real risk of it continuing, and was not persuaded that FGM was a risk to her daughter. On balance, the best interests of the children would be to remain with their mother. At this stage of appeal, a lack of reference to Section 55(3) was not raised. Permission to appeal to the Upper Tribunal was refused.
The Respondent brought a judicial review against this refusal of permission. She objected to the lack of compliance with Section 55(3). By consent, that refusal of permission was quashed. The Upper Tribunal reconsidered her application for permission to appeal. It granted her permission to appeal but dismissed it substantively after finding the FTT had not made any error in law.
The Respondent brought a further appeal to the Northern Ireland Court of Appeal. That court considered that the Secretary of State's lack of an explicit referral to her duty under Section 55(3) necessitated an inference that she had breached that duty. The court therefore concluded that the Secretary of State had unlawfully interfered with the Respondent's children's Article 8 rights, which the FTT had not made right. The Respondent's appeal was, therefore, allowed. The FTT was to reconsider her appeal. In response, the Secretary of State appealed to the Supreme Court.
Judgment
The Supreme Court considered that the FTT had not committed an error of law. Instead, it had properly applied Article 8, with the best interests of the respondent's daughter being, rightly, a primary consideration. The other members of the court agreed with the co-authored judgment of Lord Sales and Dame Siobhan Keegan.
Reasons
An appeal to the FTT under the Nationality, Immigration and Asylum Act 2002 (engaging Sections 82, 84 and 86) is an opportunity for a fresh consideration of evidence, which can be new; it is not a judicial review or appeal that is confined to an error of law [37-38]. In human rights cases, the FTT is, functionally, a new primary decision-maker [39].
Given the FTT has this role (and can no longer remit cases back to the Secretary of State, negating the value of prior case law), it has a responsibility to consider the best interests of the child. If it does not have the information necessary to make a decision, it must use its powers to adduce that evidence [46]. Ordinarily the FTT can assume a parent has put forth all relevant evidence, particularly where a party is legally represented [47]. However, the FTT would commit an error of law if, if on notice of a vital gap in the evidence, it irrationally fails to make relevant inquiries [48].
Three features of Article 8 are relevant. First, the best interests of the child must be treated as a primary consideration in relation to decisions affecting that child [49-51]. Second, any decision must be in accordance with the law (as set out in article 8(2)), critically meaning that the FTT is not required to refer to or apply Section 55 in its own decision-making [52-55]. Third, there is an implied procedural obligation to give the affected person an opportunity to participate in the decision-making process [56-58].
As a public authority, Section 6(1) of the Human Rights Act requires the Secretary of State (and their officials) and the FTT to act compatibly with the child's Convention rights. Section 55 is directed at ensuring the best interests of a child are considered by civil servants in practice and it operates in support of the overarching obligation under article 8 [59-60]. Section 55 does not apply to the FTT, but practically its decision-making must consider the best interests of the child by virtue of article 8 and section 6 of the HRA [62-63].
In considering whether the Secretary of State has complied with the guidance, it is substance, not form, which matters; mere reference to guidance is neither necessary nor sufficient to discharge its obligations under Section 55 [67]. Particular reference to the guidance would be best practice but substantive compliance is required whether it is referenced or not [70-79]. Case law from Northern Ireland which emphasised the importance of specifically referencing the guidance was wrong [81].
In interpreting the requirements of the guidance itself and considering a child's best interests, it is not required that the Secretary of State arranges for every child to be interviewed about their wishes. Non-exhaustive but relevant factors include separation from parents, conflict between a child's views and that of their parents, and the child's capacities, age and maturity [85-86]. Generally, the lawfulness of an assessment is subject to the conventional public law rationality test, which may be constrained given anxious scrutiny of a child's circumstances is required to give a decision-maker sufficient confidence that they are able to determine a child's best interests [90].
On the facts of the case, an interview with the Respondent's daughter was not necessary given the common ground that FGM would evidently be against her best interests. There was no basis to doubt the Respondent's ability to speak on behalf of her daughter [91-92]. There was no breach by the Secretary of State's officials under Section 55(3).
However, even if there had been a breach by the Secretary of State under Section 55(3), the appeal would still have failed. As a new primary decision-maker, if the FTT makes a proper determination about a child's rights under Article 8, there are no good grounds for an appeal against its decisions on the basis of Section 55(3) [97-98].
The case turned on whether the FTT complied with its Article 8 duties [100]. It did so, satisfying the procedural requirement and was in accordance with the law [101-105].
Comment
The Supreme Court has provided a welcome clarification of how the courts should consider the welfare of children in an immigration context. Conflicting case law from Northern Ireland was ruled incorrect, meaning the English and Welsh, Scottish, and Northern Irish courts now have a unified approach to Section 55.
The Secretary of State and her officials must take notice that it is substance which triumphs over form in determining human rights claims in the immigration context.