A Home Office refusal letter considered the welfare of CAO’s children without expressly mentioning the statutory guidance on safeguarding children. The Supreme Court distinguished two questions: whether officials had in substance followed the guidance, and whether the tribunal had itself lawfully determined the human rights appeal.
The claim and the decision letter
CAO sought asylum for herself and her children. She alleged domestic violence and a risk that her daughter would undergo female genital mutilation if they returned to Nigeria. The authorities disputed that the alleged risk was established.
The refusal letter considered the children’s welfare and the family’s circumstances. It did not expressly cite the safeguarding guidance issued under section 55 of the Borders, Citizenship and Immigration Act 2009.
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What the tribunals decided
CAO appealed to the First-tier Tribunal. It considered the evidence and rejected the claims of a real risk on return. It treated the daughter’s best interests as a primary consideration. CAO, who was represented, had not argued there that the officials’ failure to cite the guidance invalidated their decision.
After a change of representation, CAO raised section 55. The Upper Tribunal ultimately upheld the First-tier Tribunal’s decision.
The Northern Ireland Court of Appeal allowed CAO’s appeal and remitted the matter. The Secretary of State challenged its approach to the absence of a reference to the guidance and to the effect of an administrative breach on the tribunal’s own decision.
The tribunal decides the case again
Lord Sales and Dame Siobhan Keegan explained that the First-tier Tribunal decides a human rights appeal for itself on the evidence before it. Its decision supersedes that of the Secretary of State. A defect in the administrative process may reveal a gap in the evidence which the tribunal should address; it does not by itself invalidate the fresh decision.
Comments in SS (Nigeria) that an inquisitorial role would be extremely rare had to be qualified, because remission was then still available. Even so, a parent relying on a child’s interests must prove the case. Where parent and child are represented, the tribunal may assume that the evidence relied on has been produced. It must look further only if there is an obvious and vital gap, such as no attempt at all to consider a child’s best interests.
Section 55 supports article 8, but it does not bind the tribunal
Article 8 requires respect for private and family life. An interference must be in accordance with the law and proportionate. As explained in ZH (Tanzania), and summarised in Zoumbas, a child’s best interests are a primary consideration. They are not automatically paramount, and other considerations may outweigh them, but none may be treated as inherently more important. The child’s circumstances must be understood before that balance is struck, and the child must not be blamed for a parent’s conduct.
Section 55 directs the Secretary of State to arrange for relevant functions to be discharged having regard to the need to safeguard and promote children’s welfare. Officials exercising those functions must have regard to the guidance. The First-tier Tribunal is not itself subject to section 55. Its own obligations include giving proper weight to children’s best interests when deciding an article 8 claim.
The Court held that an obiter comment in ZH (Tanzania), suggesting that disregard of section 55 meant a decision was not “in accordance with the law”, could not be sustained and should no longer be relied upon. The Court there had not heard argument on that point. If the tribunal treats best interests as a primary consideration and makes no other legal error, its decision meets article 8(2), whether or not it mentions section 55. The Court did not hear argument on the full meaning of “in accordance with the law” as applied to the Secretary of State’s own measure, and did not endorse the view in Arturas that a domestic-law failure could never itself breach that requirement.
It also rejected the view that a section 55(3) breach by officials automatically makes the tribunal’s decision procedurally unlawful under article 8. CAO had a fair opportunity to present her case and her children’s case both to the Secretary of State and to the tribunal.
Silence about the guidance is not itself a breach
A letter’s silence about the guidance is evidence to consider, not a legal test of compliance. The question is what the officials actually did. An express reference can help explain the decision, but an omission does not establish that the substance of the guidance was disregarded.
Here, officials considered the alleged risk to the daughter and her welfare. They were not required to interview her about a risk which, on the account advanced, concerned decisions by adults. The circumstances did not call for that step.
The tribunal’s decision was lawful in any event
The tribunal’s own consideration of the daughter’s interests and its procedure complied with article 8. There was no error of law in its assessment. A later change in the family’s circumstances would have to be raised by a fresh claim.
Verdict: The Supreme Court unanimously allowed the Secretary of State’s appeal and restored the Upper Tribunal’s order dismissing CAO’s appeal. It did not need to decide the full scope of the “in accordance with the law” requirement as applied to the Secretary of State’s own decision.
Source: CAO v Secretary of State for the Home Department (Northern Ireland) [2024] UKSC 32
