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

A Nigerian mother sought asylum for herself and her children, claiming her daughter faced risk of FGM upon return to Nigeria. The Supreme Court considered whether breach of section 55 of the Borders, Citizenship and Immigration Act 2009 by the Secretary of State would render the First-tier Tribunal's decision unlawful. The Court held that the FTT's own lawful determination supersedes any earlier breach by the Secretary of State.

Facts

The respondent, a Nigerian national, arrived in the United Kingdom in September 2018 with her son (aged 16) and daughter (aged 12) and applied for asylum. She claimed she had experienced domestic violence from her husband and that his family expected her daughter to undergo female genital mutilation (FGM). The Secretary of State refused the application in April 2019. The respondent appealed to the First-tier Tribunal (FTT), which dismissed the appeal after finding significant inconsistencies in her evidence and concluding there was no real risk of FGM or domestic violence, and that internal relocation within Nigeria was viable.

Issues

Primary Legal Issues

The principal issues were: (1) whether the Secretary of State breached her duty under section 55(3) of the Borders, Citizenship and Immigration Act 2009 by not expressly referring to the statutory guidance in her decision letter; (2) the relationship between section 55 and Article 8 ECHR; (3) whether any such breach by the Secretary of State would render the FTT’s subsequent decision unlawful; and (4) whether the FTT was itself subject to duties under section 55.

Judgment

The Relationship Between Section 55 and Article 8

The Supreme Court clarified that section 55 imposes duties on the Secretary of State and immigration officials, not on the FTT. The FTT is subject to Article 8 ECHR and section 6 of the Human Rights Act 1998, requiring it to treat the best interests of the child as a primary consideration.

“the FTT is subject to a duty to comply with article 8, which imports an obligation to treat the best interests of the child as a primary consideration, and is not separately subject to any duty under section 55(1) or (3).”

Compliance with Section 55(3)

The Court held that compliance with section 55(3) is assessed by substance, not form. Explicit reference to the Guidance is not required if the decision-maker has substantively addressed the matters it covers.

“Just as the use of a mantra referring to the statutory provision does not of itself show that the duty has been performed, so too a failure to refer expressly to the statute does not of itself show that the duty has not been performed.”

Effect of Any Breach on FTT Decision

The Court held that even if the Secretary of State had breached section 55(3), this would not render the FTT’s decision unlawful. The FTT acts as the primary decision-maker on appeal, and its decision supersedes that of the Secretary of State.

“even if [the Secretary of State] breached section 55, the breach was superseded by the FTT’s full consideration of [the child’s] best interests, its treatment of them as a primary consideration, and its proportionality assessment.”

Application to the Facts

The Court found there was substantive compliance with the Guidance by the Secretary of State. The daughter’s best interests were treated as a primary consideration, and there was no requirement to interview her given there was no conflict between mother and daughter on the FGM issue. The FTT properly directed itself on Article 8 and made lawful findings of fact.

Implications

This judgment clarifies that: (1) the FTT is not subject to section 55 duties but must comply with Article 8; (2) compliance with ‘have regard’ duties is assessed substantively rather than formally; (3) any breach by the Secretary of State of section 55(3) is superseded by a lawful FTT determination; (4) the Guidance requires flexible, practical application depending on circumstances; and (5) the Northern Ireland case law from MK (Sierra Leone) through JG to CAO, which emphasised formal compliance, was in error. The case resolves a conflict between approaches in different UK jurisdictions and provides important guidance on children’s welfare in immigration proceedings.

Verdict: Appeal allowed. The order of the Upper Tribunal dismissing the respondent’s appeal from the FTT was restored. The FTT had made no error of law in its determination.

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