The Secretary of State for the Home Department v TC
[2023] UKUT 164 (IAC)
CAO v Secretary of State for the Home Department (Northern Ireland)
23 October 2024
[2024] UKSC 32
Supreme Court
A mother claimed asylum for her children, fearing violence and FGM in Nigeria. The government rejected the claim. The courts initially sided with the mother because the government’s decision didn’t properly mention children’s rights. The Supreme Court reversed that decision, explaining that even if the government’s initial decision was flawed, the later court decision that considered the children's best interests was correct. The Supreme Court focused on whether the court made the right decision, not on whether the government's initial decision was perfect.
Key Facts
- •The respondent, a Nigerian national, arrived in the UK with her children in 2018 on a visitor's visa and claimed asylum.
- •The asylum claim was based on fears of domestic violence and FGM for her daughter upon return to Nigeria.
- •The Secretary of State refused the asylum claim, stating inconsistencies in the respondent's account and finding no real risk of FGM.
- •The Secretary of State's decision letter mentioned section 55 but didn't explicitly reference section 55(3) or the Guidance.
- •The case went through various tribunals and courts, with the NICA ultimately allowing the respondent's appeal due to alleged non-compliance with section 55.
- •The Supreme Court heard the appeal.
Legal Principles
Section 55 of the Borders, Citizenship and Immigration Act 2009 mandates safeguarding and promoting children's welfare in immigration decisions.
Borders, Citizenship and Immigration Act 2009, section 55
Article 8 of the ECHR, concerning respect for private and family life, requires the best interests of the child to be a primary consideration in decisions affecting them.
European Convention on Human Rights, Article 8
A decision violating section 55 does not automatically render a subsequent FTT decision unlawful; the FTT is the primary decision-maker on appeal.
Various Case Law (ZH (Tanzania), AJ (India), ZG)
Compliance with section 55(3) focuses on the substance of the decision, not mere formal reference to the Guidance.
Case Law (AJ (India), Baker, Hotak)
The FTT has a duty under section 6 of the HRA to make decisions compatible with Convention rights, including treating the child's best interests as a primary consideration.
Human Rights Act 1998, section 6
Outcomes
The Supreme Court allowed the Secretary of State's appeal.
The Supreme Court found substantive compliance with the Guidance and no error of law by the FTT. The FTT's decision superseded the Secretary of State's, and the FTT properly considered the child's best interests as a primary consideration. The absence of explicit reference to section 55(3) or the Guidance in the initial decision letter was not fatal.
The order of the Upper Tribunal dismissing the respondent's appeal was restored.
The Supreme Court found that the FTT had not erred in law and had properly considered the child's best interests. The alleged breach of section 55(3) by the Secretary of State did not invalidate the FTT's decision.
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