Jurisdiction(s):
United Kingdom

UK Supreme Court in CAO v SSHD: FTT applies Article 8 afresh, not bound by BCIA 2009 s55; lack of reference to s55 guidance not fatal; Northern Ireland line disapproved

Published on: 23 October 2024

Published by a LexisNexis Immigration expert

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Article summary

CAO (Respondent) v Secretary of State for the Home Department (Appellant) (Northern Ireland) [2024] UKSC 32

Background to the Appeal

This appeal addresses the interpretation and effect of section 55 of the Borders, Citizenship and Immigration Act 2009 (BCIA 2009), the relationship between BCIA 2009, s 55 and article 8 of the European Convention on Human Rights (ECHR), and how decision-making in immigration matters operates for the Secretary of State for the Home Department (SSHD) and for a tribunal determining an appeal from the SSHD. BCIA 2009, s 55 focuses on protecting and advancing the welfare of children, including when choices are made about their immigration position, and ECHR, art 8 may demand a comparable stance. Under BCIA 2009, s 55(1), the SSHD must put in place arrangements to ensure that all immigration functions are performed with proper regard to the need to safeguard and promote children’s welfare. A related obligation appears in BCIA 2009, s 55(3): any individual exercising immigration functions, including Home Office officials acting for the SSHD, is required to have regard to statutory guidance issued by the SSHD (the Guidance)...

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