“The Applicants seek an urgent mandatory order requiring the SSHD to admit EK and SK to the UK. The Applicants submit that her failure to do so to date is not only an egregious breach ofArticle 8 ECHR and the SSHD’ssection 55 Borders Citizenship and Immigration Act 2009 (‘BCIA 09’) duty, but also amounts to inhuman and degrading treatment of all the Applicants underArticle 3 ECHR . The SSHD’s failure to admit the parents including by initially leaving them to try to make their way by boat placing their lives at risk, and where evidence shows that the children have already been seriously harmed and every passing day carries with it an increasing risk of long-term damage to the children’s physical and psychological health and development, amounts to treatment contrary toArticle 3 ECHR .”
“…In the present context, there is a particular public interest in not providing a route for an unaccompanied child to sponsor a parent (that public interest being in not creating an incentive that might lead to the lives and safety of children being put at risk). This public interest is reflected in the Immigration Rules…”
“KCC relies on a witness statement filed on6 January 2025 setting out its current position. KCC highlights the fact that the uncertainty about the best interests of the children arises largely because it remains unclear where the family can be reunited. KCC has no control over where reunification can take place.”
“That is because on the information available it does not appear to be accepted that the parents can lawfully enter the UK (albeit it is accepted that there is uncertainty about this)…”
“30. To date, given the continued positive indications the Home Office received from French authorities about the ability of the children to enter France and the uncertainty about the outcome of the judicial review proceedings in the Upper Tribunal, KCC has sought to assess whether reunification in France is in the best interests of the child. It does not, however, rule out reunification in the UK if the evidence shows that it would be in the children’s best interests.”
“42. The effect of that evidence, in summary, is that there is a clear political will at the highest level of the French government to facilitate the reunification of the family in France. It follows that there would be no difficulties about the admission of the children to France as such. However, there are assessment procedures which it is necessary to go through before reunification with the parents can be achieved. How long that will take depends on the co-operation of the parents and the outcome of the assessment. But the implication of what was said at the meeting of 3 December is that if the parents co-operate the assessment should take substantially less than three months; and it is clearly realistic to expect that the result will be known in good time before the scheduled final hearing in the family proceedings.”
“53. In my opinion this Court is obliged to accept the Secretary of State's assessment of that risk, now more fully set out and explained in the further evidence of Dr Elimelech, as reasonable and legitimate – and certainly in the context of a summary process involved in an application for interim relief. It is based on the experience of officials who are far better placed than we can be to make judgments about the likely behaviour of the people-smuggling gangs and their clients. I place weight also on the fact that the French authorities, who were under no legal obligation to agree to reunification in France rather than the UK, have agreed to do so in this case because they share the fears of the UK government about the risk to other children: see para. 37 above. 54. In my opinion also the wish to avert that risk is clearly capable in principle of justifying the Secretary of State in pursuing the possibility of reunification in France notwithstanding that that process would inevitably take longer than a straightforward grant of entry. No humane person would take lightly the impact on the children of any prolongation of their separation from their parents beyond the minimum period necessary. But the Secretary of State has to balance the harm to them against serious policy considerations designed to prevent the risk of far worse harm to others. It is worth repeating that the initial separation is not of her making: on the contrary, she is having to address the consequences of a situation created the illegal and dangerous activities of the people-smugglers – and, it has to be said, by the parents in seeking to take advantage of those activities rather than seeking asylum in Belgium or France. Also, without wishing in any way to minimise the children's distress, it must be recognised that they are being very well looked after by experienced foster-carers in a stable and appropriate environment, and they are in daily contact with their parents. In that context the continuation of their separation does not weigh as heavily in the balance as it otherwise might. In reaching that conclusion, I of course take into account the obligation in section 55 of the 2009 Act to safeguard and promote the welfare of the children, but although the best interests of a child must be a primary consideration, they are not paramount. 55. Ms Kilroy submitted that even if Dr Elimelech's evidence were accepted the eventuation of the risk was uncertain, and that it was wrong to subject the children to the certain harm of prolonging the separation in order to avoid an uncertain future harm to others. I do not accept that. It is necessary to take into account the relative scale and gravity of the two harms. If the gangs do alter their behaviours as predicted, many children will be separated from their parents, and some may die as a result. 56. My conclusion that the pursuit of reunification in France can in principle justify the interference with the children's article 8 rights resulting from their continued separation from their parents does not mean that it will do so indefinitely. It is necessary to assess both the chances of a successful outcome and the timescale within which it may be achieved. As to timescale, it is clear from the Secretary of State's evidence as summarised above that there is a reasonable prospect of reunification in France being achievable within the time-frame of the family proceedings; and, that being so, it would in my view be wrong to undermine the process now by requiring the Secretary of State to admit the parents. 57. The only obvious reason why reunification might not be possible within that time frame, or something close to it, would be if the parents fail to co-operate with the authorities in France. I see no reason to proceed on the basis that that will occur. I realise of course that they would prefer to be admitted to the UK and to seek asylum here. But that does not mean that they will not choose to seek asylum in France if it becomes clear that that is the surest way of achieving early reunification with their children. Even if, as Ms Kilroy urged on us, their belief that France is not a safe country is genuine, the evidence on which they rely falls far short of establishing that that is the case, as they may come to appreciate. I note also that EK believes that a further move will be disruptive to the children, but that might be judged to be a problem worth facing for the sake of early reunification. In short, I do not believe that speculation about the conduct of the parents is a proper basis for determining the prospects of reunification in France.”
“60. I turn to the case based on article 3. I can deal with this shortly, because I do not believe that there is a strong case – let alone a particularly strong case – that the suffering which the children are undergoing as a result of any action or inaction on the part of the Secretary of State reaches the threshold for a breach of article 3. We are not of course concerned with the trauma attributable to the events of 19 July or the period of separation immediately following but only with the prolongation of the separation thereafter. As regards the distress which the children are suffering on that account, I repeat what I say in para. 53 above. Ms Kilroy referred us to the decisions of the European Court of Human Rights in Mayeka v Belgium[2006] ECHR 1170 and Tarakhel v Switzerland[2014] ECHR 1185 , but the facts in those cases were very different.”