Family Reunification Judicial Review Dismissed

The Upper Tribunal has dismissed a judicial review in the case of R (EK & Others) v Secretary of State for the Home Department (JR-2024-LON-002556), involving a Turkish Kurdish family separated during a Channel crossing attempt. Despite the parents’ efforts to reunite with their young children, aged nine and six, who arrived in the Auckland, the tribunal ruled against the judicial review, emphasising public interest considerations and the potential implications for future cases.

Background

The family was separated during a Channel crossing in July 2024, with the children entering the Auckland while the parents remained in France. On 21 August 2024, the parents applied for entry clearance to reunite with their children. Delays in processing led to judicial review proceedings initiated on 30 September 2024, arguing breaches of Articles 3 and 8 of the European Convention on Human Rights (ECHR) and the Section 55 duty regarding children’s welfare.

Initially, the Upper Tribunal granted an interim order, but the Home Office successfully challenged this, with the Court of Appeal setting it aside on 20 December 2024. Shortly after, on 30 December 2024, the Home Office issued refusals of entry clearance, citing concerns over creating a precedent that could encourage smugglers to exploit children as a means for parents to gain entry.

Judicial Review Proceedings

In January 2025, the parents sought to withdraw the judicial review, arguing that the appeal before the First-tier Tribunal rendered the case academic. However, the Home Office opposed the withdrawal, accusing the parents’ legal team of strategic manipulation to avoid a negative ruling and arguing that the case raised significant public interest issues.

The tribunal refused consent to withdraw the judicial review, agreeing that the case involved important public interest questions and could inform ongoing family law proceedings concerning the children’s best interests.

Tribunal’s Decision

The tribunal ultimately dismissed the judicial review, relying heavily on the Court of Appeal’s prior findings. It determined that:

• Article 8 (Right to Family Life): The tribunal found no breach of Article 8, as the Home Office’s decision prioritised public interest concerns, particularly the risk of encouraging dangerous smuggling practices.
• Article 3 (Prohibition of Inhuman or Degrading Treatment): The distress experienced by the children did not meet the Article 3 threshold. The tribunal emphasised that reunification could feasibly occur in France, reducing the severity of the separation’s impact.

The tribunal also acknowledged the speculative nature of some Home Office arguments but ultimately accepted the government’s position that allowing the parents entry could incentivise harmful migration practices.

Implications and Conclusion

This case underscores the Home Office’s commitment to a firm stance on immigration controls, even at the risk of prolonged family separations. The tribunal’s decision highlights the tension between safeguarding public interest and upholding human rights, particularly the rights of children.

While the family may now have a clearer path to reunification in France, the prolonged separation raises concerns about the emotional and psychological toll on the young children involved. The case also sets a precedent regarding the government’s approach to similar family reunification claims, especially in contexts involving irregular migration.

Practitioners should closely monitor developments in this area, particularly the pending appeals before the First-tier Tribunal, which may further clarify the legal landscape concerning family reunification and the rights of children under the ECHR.

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