Court of Appeal in Northern Ireland Decisions

[1]        The appellant and her children have been granted anonymity throughout the entirety of these proceedings and continue to enjoy this protection.  Accordingly, there must be no publication of their names or of any information which could reasonably lead to any of them being identified.

Introduction

[2]        Section 55 of the Borders, Citizenship and Immigration Act 2009 ("section 55" and "the 2009 Act" respectively) is an incontestably important member of a suite of statutory provisions designed to protect one of the most vulnerable cohorts in society, namely children.  This appeal, not for the first time, requires the court to examine the duties imposed by section 55, specifically subsection (3), on the Secretary of State for the Home Department (the "Secretary of State") and the two tiers of the Immigration and Asylum Chamber. This, as will become apparent, is a question which has been previously considered by the courts and tribunals of the jurisdictions of Northern Ireland, Scotland and England & Wales.  A unanimous approach has not emerged.  In particular, the Upper Tribunal has decided recently that there are material differences between this jurisdiction and that of England and Wales and Scotland in the construction and application of section 55.  This is a significant development which, in the context of a United Kingdom tribunal (both tiers), gives rise to a divergence between at least two parts of that single unitary state.

Section 55

[3]        Section 55 of the Borders, Citizenship and Immigration Act 2009 (hereinafter "section 55") lies at the heart of these proceedings. Under the rubric of "Duty regarding the welfare of children" it provides as follows:

"(1)      The Secretary of State must make arrangements for ensuring that—

(a)              the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and

(b)              any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.

(2)        The functions referred to in subsection (1) are—

(a)              any function of the Secretary of State in relation to immigration, asylum or nationality;

(b)              any function conferred by or by virtue of the Immigration Acts on an immigration officer;

(c)               any general customs function of the Secretary of State;

(d)              any customs function conferred on a designated customs official.

(3)        A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1).

(4)        The Director of Border Revenue must make arrangements for ensuring that—

(a)              the Director's functions are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and

(b)              any services provided by another person pursuant to arrangements made by the Director in the discharge of such a function are provided having regard to that need.

(5)        A person exercising a function of the Director of Border Revenue must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (4).

(6)        In this section—

"children" means persons who are under the age of 18;

"customs function", "designated customs official" and

"general customs function" have the meanings given by Part 1.

(7)        A reference in an enactment (other than this Act) to the Immigration Acts includes a reference to this section.

[4]        An unsuccessful application for asylum has been the genesis for the appeal to this court.  The appellant is a citizen of Nigeria and the mother of two children,  born to her in that country.  On 25 September 2018 she entered the United Kingdom with her children, then aged 12 and 16 years respectively. On 8 November 2018 she applied for asylum and humanitarian protection, invoking also her rights and those of her children protected by Articles 2, 3 and 8 ECHR under section 6 of the Human Rights Act 1998.  The essence of the appellant's claim was that she had been subjected to violence by her husband, rendering her a member of a particular social group (namely female victims of domestic violence in Nigeria) and was at risk of further such violence upon return.  As regards her daughter, the claim was based on a real risk of being subjected to female genital mutilation directed by her husband.  It was claimed that neither the appellant nor her daughter would be able to rely on the Nigerian law enforcement agencies for protection and, further, that internal relocation within Nigeria was not a viable option.  

[5]        The decision underlying the somewhat protracted legal proceedings which have materialised is that of the Secretary of State for the Home Department (the "Secretary of State") dated 10 April 2019, whereby the appellant's application for asylum was refused.  The Secretary of State's decision maker examined separately what were assessed as the twin components of the appellant's asylum claim, namely (a) fear of the infliction of violence by her husband and (b) the risk of her husband forcing their daughter to undergo female genital mutilation ("FGM"), in the event of a return to Nigeria.  It was concluded that these claims lack plausibility and credibility.  The decision maker highlighted inter alia the fact of the appellant and her children returning to Nigeria following three previous visits to the United Kingdom, the appellant's delay (some 5 weeks) in claiming asylum following entry to the United Kingdom, her husband's express consent to the children accompanying the appellant on this visit and her husband's willingness to marry the appellant, notwithstanding that she had not undergone FGM.

[6]        The decision maker then turned to consider the issue of State Protection in the event of the appellant and her children returning to Nigeria.  This gave rise to a further discrete conclusion namely that the appellant had failed to demonstrate that the Nigerian authorities would be unable or unwilling to offer her protection if requested.  From this it followed that the appellant did not fall within the compose of the Refugee Convention 1951.  In short, a well founded fear of persecution for a Convention reason had not been demonstrated.

[7]        The decision maker nonetheless then turned to address the issue of internal relocation.  The conclusion made was that the appellant had failed to demonstrate that it would be unreasonable to expect her to relocate in Nigeria.  The omnibus conclusion was:

"... there is no reasonable degree of likelihood that you would be persecuted on return to Nigeria."

This was followed by further discrete conclusions that the appellant's removal  from the United Kingdom would not violate her rights under Article 2, Article 3 or Article 8 ECHR.  Nor could she lay claim to any entitlement to remain in the United Kingdom under the Immigration Rules.

[8]        The decision letter did not stop there. Next, under the rubric of "Exceptional Circumstances", it was stated:

"We have considered whether there are exceptional circumstances in your case which would render refusal a breach of Article 8 [ECHR] because it would result in unjustifiably harsh consequences for you, a relevant child or another family member.  In so doing we have considered the best interests of any relevant child as a primary consideration ...

You have provided no information or evidence to establish that there are any exceptional circumstances in your case."

In the next ensuing passage, the possibility of granting discretionary leave to remain was canvassed and rejected.

[9]        The final substantive part of the decision letter is arranged under the title of "Section 55 Consideration."  It is in the following terms:

(1)               We have also taken into account the need to safeguard and promote the welfare of children in the United Kingdom in accordance with the Secretary of State's duty under section 55 of the [2009 Act]. 

(2)               The circumstances of your case have been assessed in keeping with relation to [sic] section 55 ... This amounts to a consideration of the impact of the decision on the wellbeing (also known as 'best interests') of any children involved and its extent.  The following are taken into account:

(i)         Whether it is reasonable to expect the child to live in another country.

(ii)       What is the level of the child's integration into this country.

(iii)      How long has the child been away from the country of the parents.

(iv)      Where and with whom the children will live in that country.

(v)        What the arrangements for the child will be in that country, and

(vi)      What is the strength of the child's relationship with a parent or other family member(s) that would be broken if the child moves away.

(3)               Any other factors that you raised have also been taken into account. These have then been included in a final and overall consideration which includes the wider public interest in maintaining an effective system of immigration control.

(4)               Your children who are aged 12 and 16 have been in the United Kingdom with you since September 2018, meaning they have been away from Nigeria for six months. As such it is noted that your children can return to Nigeria with you. They all speak English and have been educated in Nigeria albeit this has interrupted [sic] since September 2018.

(5)               CPIN (2016 V2 6.22) it is noted that English is also the official language for Nigeria and as such would not be a significant barrier to continuing their schooling in Nigeria. It is not considered that your children have created significant links to life in the UK and that it would therefore not be unduly harsh to return them with you.  It is therefore considered that it would be in the best interests of your children to be returned with you to Nigeria as a family unit.

(6)               Having made this consideration our view is that these factors do not alter the decision to remove you to Nigeria."

[10]      Summarising, the Secretary of State's refusal of the appellant's asylum and human rights protection claims was based on an assessment of several perceived disparities and other frailties, including in particular the appellant's failure to claim protection during three earlier visits to the United Kingdom.  The Secretary of State further considered that in any event there would be sufficient protection provided by the authorities in Nigeria to the appellant and her children and that internal relocation would be available to them.

The History of these Proceedings

[11]      The decision letter was followed by several tribunal decisions, which we shall outline infra.  Most recently, by its separate decisions dated 25 March 2022 and 29 July 2022, the Upper Tribunal, Immigration and Asylum Chamber (the "UT") (a) dismissed the appellant's appeal and (b) subsequently refused her application for leave to appeal to this court.  By its order dated 9 October 2022 this court granted leave to appeal.

[12]      The central theme of the FtT's dismissal of the ensuing appeal is that the appellant's case was considered to be replete with inconsistencies, relating particularly to the period 2013–2018.  The Tribunal further concurred with the Secretary of State's assessments of the availability of adequate protection from the Nigerian authorities and the option of internal relocation within Nigeria.  Finally, the FtT dealt with the issues of the children's best interests and Article 8 in the following terms:

"[Counsel] accepted at the hearing that there are no separate issues arising in relation to the appellant's private and family life which have not been considered in the context of the asylum claim.  No submission was made that the appellant meets any of the requirements of the Immigration Rules in relation to her private or family life. The appellant and her family will return to Nigeria together and I find on the evidence before me that it is in the best interests of the children to remain with their mother. On the evidence and submissions before me no separate Article 8 claim arises and I am satisfied that the decision to refuse the appellant's application is proportionate to the respondent's legitimate aim of the maintenance of an effective system of immigration control."

[13]     The UT, following the procedural route charted in para [4] above, sensibly conducted a hearing of the "rolled up" species and made the twofold decision that (a) permission to appeal should be granted on all grounds and (b) the appeal would be dismissed as the decision of the FtT did not involve the making of an error of law.  The UT's assessment that the grounds of appeal were arguable was based on the failure of the FtT to address the section 55 issue.  The tribunal's reasons for concluding that the section 55 ground of appeal had no merit are expressed at paras [27]–[29]:

"The appellant was represented by solicitors and counsel who must be taken to have been aware of JG yet the issue of section 55 ... was not argued in front of the judge.  The issue is fact sensitive and not purely an issue of law.  It cannot, in such circumstances, be for a judge to go looking for issues which the legally represented appellant did not raise ....

This case can be clearly distinguished on its facts and what was argued from the decision in JG.  Despite the order from the Northern Ireland Court of Appeal* I have not been provided with the bundle of material provided to the High Court. But in any event, I have not been taken to anything that demonstrates to me that the High Court considered the materiality of any arguable error ...

Accordingly, for these reasons, I consider that the decision of the First-tier Tribunal did not involve the making of a material error of law and I uphold it."

[*an error - the order was made by the NI High Court]

[14]      As the submissions of Mr McGleenan KC (with Mr Henry of counsel) emphasised, it is necessary to review the history of these proceedings through the lens of whether, and if so how and when, section 55 issues were raised on behalf of the appellant. In brief compass:

(a)              The appellant's appeal against the Secretary of State's decision was dismissed by the First-Tier Tribunal (the "FtT") by its decision dated 25 February 2020. In the grounds of appeal section 55 does not feature.  It is, however, mentioned in counsel's skeleton argument in the context of a submission that it would be in the female child's best interests to remain in the United Kingdom with her mother and brother.  There is no mention of section 55(3) or the free-standing duty enshrined therein.  In its decision the FtT substantially endorsed the Secretary of State's decision letter and further recorded an acceptance by counsel that "... there are no separate issues arising in relation to the appellant's private and family life which have not been considered in the context of the asylum claim."

(b)              Successive applications for leave to appeal to the UT were dismissed by the FtT and the UT. Section 55 did not feature in either of these applications.

(c)               The UT refusal decision was challenged by judicial review, giving rise to a consent order quashing the impugned decision of the UT and requiring a fresh decision by a different judge, dated 12 May 2021. The PAP letter contained the following passage:

"In the first instance the SSHD failed to comply with statutory guidance "Every Child Matters" pursuant to section 55(3) .... [and] ... the FtT judge ignored the SSHD's failure ...."

There is no further mention of section 55(3).  However, in the ensuing pleaded grounds of challenge there are two express references to section 55(3), albeit in the context of a somewhat opaquely formulated ground under the rubric of irrationality.

(d)              By its substantive decision and order dated 25 March 2022 the UT granted leave to appeal and dismissed the appeal.

(e)               By its subsequent decision dated 29 July 2022 the UT refused to grant leave to appeal to this court.

(f)                By its order dated 06 October 2022, following an inter - partes hearing this court granted leave to appeal.

[15]      The UT, in several passages, refers to section 55 without specificity ie omitting any reference to the pertinent subsection. The reference at para [27] of its decision to JG suggests that in this part of its decision it had in mind section 55(3). It concluded that no error of law based on the FtT's failure to consider section 55(3) had been established because this could not be related to any of the grounds of appeal or arguments advanced.  Next the judge states:

"This case can clearly be distinguished on its facts and what was argued, from the decision in JG."

There is no accompanying elaboration or reasoning. The same observation applies to the words "the materiality of any arguable error" which follow in the same paragraph.  

[16]      Summarising there are, therefore, two substantive tribunal decisions underlying his appeal, namely (a) the FtT decision dismissing the appellant's appeal against the impugned decision of the Secretary of State and (b) the UT's decision dismissing the ensuing appeal.

[19]      This is the title of the guidance promulgated by the Secretary of State under section 55(3).  It was published in November 2009 and has not been superseded or modified subsequently.  In all cases to which section 55(2) applies - which include all immigration, asylum, and nationality matters - the duty imposed upon every official exercising any of the relevant functions is to "have regard to" this guidance.  The statutory language is uncompromising: the official "must" do so.

[20]      The statutory guidance is subtitled:

"Statutory Guidance to the UK Border Agency on making arrangements to safeguard and promote the welfare of children ....  issued under section 55 of the Borders, Citizenship and Immigration Act 2009."

The Ministerial Foreword states inter alia:

"The UK Borders Agency undertakes difficult and sensitive work on behalf of society as a whole.  Working with children presents particular challenges.  To meet these challenges effectively, the UK Border Agency needs the support of all those with an interest in children."

The opening paragraph of the Introduction is in these terms:

"Improving the way people and bodies safeguard and promote the welfare of children is crucial to improving outcomes for children."

Continuing, it is highlighted that the arrangements within the guidance include:

"Service developments that take account of the need to safeguard and promote welfare and is informed, where appropriate, by the views of children and families."

The overview of the content is in these terms:

"Part 1 describes the general arrangements to safeguard and promote the welfare of children which are likely to be common to all agencies covered by section 11 [Children Act 2004] and, in the case of the UK Border Agency*, by section 55. Part 1 is intended to make clear how the work of the UK Border Agency fits into the wider arrangements, although not all of Part 1 is directly relevant to it."

[*"UKBA"]

This is followed by a passage of some note:

"This guidance is issued under section 55(3) and 55(5) which requires any person exercising immigration, asylum, nationality and customs functions to have regard to the guidance given to them for the purpose by the Secretary of State.  This means they must take this guidance into account and, if they decide to depart from it, have clear reasons for doing so."

                        [Our emphasis.]

[21]      Throughout Part 1  there are repeated reminders of the duty in play namely the duty on UKBA officials to:

"... carry out its existing functions in a way that takes into account the need to safeguard and promote the welfare of children."

Faithful to the statute, the text makes clear that this duty is not to be performed in some unstructured fashion.  Rather, it will be performed within the compass of the "arrangements" which the Secretary of State must, by statute, make to this end: see paras 1.4 and 1.3.  In paras 1.4 and 1.5 excerpts from the guidance published under section 11 of the 2004 Act and the 2002 multi-agency report "Safeguarding Children" are reproduced:

"Safeguarding and promoting Safeguarding and promoting the welfare of children is defined in the guidance to section 11 of the 2004 Act (section 28 in Wales) and in Working Together to Safeguard Children as:

·                     protecting children from maltreatment;

·           preventing impairment of children's health or development (where health means 'physical or mental health' and development means 'physical, intellectual, emotional, social or behavioural development');

•         ensuring that children are growing up in circumstances consistent with the provision of safe and effective care; and

·           undertaking that role so as to enable those children to have optimum life chances and to enter adulthood successfully.

The overall framework set out in the 2004 Act is to provide a basis for achieving the vision of safeguarding set out in the report Safeguarding Children ie:

·           all agencies working with children, young people and their families take all reasonable measures to ensure that the risks of harm to children's welfare are minimised; and

·           where there are concerns about children and young people's welfare, all agencies take all appropriate actions to address those concerns, working to agreed local policies and procedures in partnership with other agencies."

[22]      In the next section of the statutory guidance (paras 1.6–1.7) there is a notable emphasis on the requirement of a structured framework according to which the statutory duty to discharge UKBA functions with regard to the need to safeguard and promote the welfare of children is to be performed.  In this context the multiplicity of public authorities subject to the statutory duty owed to children under section 11 of the 2004 Act is highlighted and they are listed.   The fact of UKBA interaction with these agencies is specifically noted (at para 1.8).   This is followed by a list of the "key features for safeguarding and promoting the welfare of children":

"(a)      Senior management commitment to the importance of safeguarding and promoting children's welfare.

(b)       A clear statement of the agency's responsibilities towards children is available for all staff.

(c)        A clear line of accountability in the organisation for work on safeguarding and promoting the welfare of children.

(d)       Service development takes account of the need to safeguard and promote welfare and is informed, where appropriate, by the views of children and families.

(e)        Staff training on safeguarding and promoting the welfare of children for all staff working with or, depending on the agencies' primary functions, in contact with children and families.

(f)        Safer recruitment.

(g)       Effective inter-agency working to safeguard and promote the welfare of children.

(h)       Information sharing."

The text rehearses the outworkings  of each of these "key features" seriatim.

[23]      In the next section of the statutory guidance there is a resume of the "Contact Point" mechanism.  This is described as "a key part of the Every Child Matters Programme to improve outcomes for children and will support practitioners, local authorities and other organisations in fulfilling their duties to safeguard and promote the welfare of children."

The text continues:

"Contact Point will be the quick way to find out who else is working with the same child or young person and allow services to contact one another more efficiently."

When one turns to examine Part 2 of the statutory guidance, the fact of this particular mechanism and its availability to UKBA assume some importance.

[24]      The next section of the statutory guidance (para 1.14) lists the "key features of an effective system" for safeguarding and promoting the welfare of individual children:

·        Children and young people are listened to and what they have to say is taken seriously and acted on;

·        Interventions take place at an early point when difficulties or problems are identified;

·        Where possible the wishes and feelings of the particular child are obtained and taken into account when deciding on action to be undertaken in relation to him or her.  Communication is according to his or her preferred communication method or language;

·        Ethnic identity, language, religion, faith, gender, and disability are taken into account when working with a child and their family;

·        Practitioners are clear when and how it is appropriate to make a referral to Local Authority children's services where children may need services to safeguard them or to promote their welfare;

·        Where children are being provided with services to respond to their needs and support their welfare (usually by Local Authority children's services), professionals including the UK Border Agency contribute to subsequent plans, interventions and reviews in accordance with requirements in relevant regulations and guidance;

·        Following assessment, relevant services are provided to respond to the assessed needs of children and to support parents or carers in effectively undertaking their parenting roles. Wherever such services are being provided the UK Border Agency will take account of them in planning their future interaction with the family and the children.

[25]      This is followed by (in paras 1.15 and 1.16) a detailed list of the "principles [which] underpin work with children and their families to safeguard and promote the welfare of children."  The text continues:

"The UK Borders Agency should seek to reflect them as appropriate."

Followed by (para 1.16):

"Work with children and families should be:

·               child centred;

·               rooted in child development;

·               supporting the achievement of the best possible outcomes for children and improving their wellbeing;

·               holistic in approach;

·               ensuring equality of opportunity;

·               involve children and families, taking their wishes and feelings into account;

·               building on strengths as well as identifying and addressing difficulties;

·               multi and inter-agency in its approach;

·               a continuing process, not an event;

·               designed to identify and provide the services required, and monitor the impact their provision has on a child's developmental progress;

·               informed by evidence."

The themes of information gathering, and properly informed decision making are readily identifiable in this suite of principles. They emerge even more forcefully in what follows in the next paragraph.

[26]      The next part of the statutory guidance (1.17) rehearses the following principles: ensuring that every child has the opportunity to achieve their best possible development; listening to and taking account of the child's wishes and feelings; developing a co-operative, constructive working relationship with parents or care givers; identifying the "strengths and difficulties within the child, his or her family and the context in which they are living"; adopting a multi and inter-agency approach; "a continuing process not on event"; the need to reassess service provision; and the necessity of "a rigorous evidence base", drawing on the practitioner's knowledge and experience.

[27]      Part 2 of the statutory guidance is specific to UKBA.  At the outset it lists UKBA's "main contributions to safeguarding and promoting the welfare of children" in these inclusive terms:

"Ensuring good treatment and good interactions with children throughout the immigration ... process.

·      Applying laws and policies that prevent the exploitation of children throughout and following facilitated illegal entry and trafficking.

·      Detecting at the border any material linked to child exploitation through pornography.

·      Exercising vigilance when dealing with children with whom staff come into contact and identifying children who may be at risk of harm.

·      Making timely and appropriate referrals to agencies that provide ongoing care and support to children."

This is followed by references to a range of international treaties, including UNCRC.

[28]      In the next ensuing section (para 2.7) it is stated that UKBA "must" act according to the following principles:

·           Every child matters even if they are someone subject to immigration control

·           In accordance with the UN Convention on the Rights of the Child the best interests of the child will be a primary consideration (although not necessarily the only consideration) when making decisions affecting children.

·           Ethnic identity, language, religion, faith, gender, and disability are taken into account when working with a child and their family.

·           Children should be consulted and the wishes and feelings of children taken into account wherever practicable when decisions affecting them are made, even though it will not always be possible to reach decisions with which the child will agree. In instances where parents and carers are present they will have primary responsibility for the children's concerns.

·           Children should have their applications dealt with in a timely way and that minimises the uncertainty that they may experience.

The next passage in the statutory guidance (para 2.8) re-enforces the recurrent theme of direct communication between UKBA staff and affected children:

"When speaking to a child or dealing with a case involving their welfare, staff must be sensitive to each child's needs. Staff must respond to them in a way that communicates respect, taking into account their needs, and their responsibilities to safeguard and promote their welfare."

[29]      The statutory guidance then addresses the topics of senior management commitment and accountability; clear statements of responsibility; a clear line of accountability; the development of UKBA policies; training of staff; and safer recruitment, vetting and complaints procedures.  This is followed by a section entitled "Work With Individual Children."  The passages which follow describe a series of typical concrete situations in which UKBA staff will interact directly with children.  There is also explicit recognition (in para 2.21) of the need for UKBA interaction with other agencies - Local Authority Children's Services, schools, and health agencies - where appropriate.  The responsibility of UKBA to make a referral to a statutory agency is highlighted in this context (para 2.22).

[30]      The by now familiar themes of inter-agency working, information sharing and evidence based decision making resurface at paras 2.29–2.33.  Finally, the importance of the section 55 duties is reflected in passages dealing with (a) children and UKBA staff overseas and (b) contractors. As regards (a) while section 55, by its terms, does not apply to children outside the United Kingdom overseas UKBA staff must nonetheless "... adhere to the spirit of the duty" and make certain enquiries where appropriate.  Furthermore, they must receive the requisite training.  As regards (b), appropriate "operational instructions" are required and there will be mandatory monitoring to ensure that contractors "... have regard to the duty and the guidance."

The Section 55 Jurisprudence

[34]     At para [21] Lord Hodge added:

"What is important .... is that the interests of the children must be at the forefront of the decision maker's mind."

[37]     His Lordship did not suggest that there would, or could, not be cases in which the appellate tribunal may be obliged to take the step of consulting with children or, perhaps, making arrangements to ensure that this be undertaken.  By extension it is implicit in AJ India that the appellate tribunal may find itself having to undertake, or orchestrate, some of the other steps specified in the statutory guidance such as engaging with other agencies or ensuring that the "Contact Point" mechanism is utilised.  

[43]      In MK the Upper Tribunal continued its analysis at para [34]:

[46]      Addressing the discrete issue of the statutory guidance under section 55(3), the Upper Tribunal, drawing attention to the principles in para 2.7 of "Every Child Matters" (see para [24] above) stated at para [12]:

[53]      The NICA was obliged to confront the reality that under section 14 of the Tribunals, Courts and Enforcement Act 2007 remittal to the Secretary of State was not an option.  This was considered unsatisfactory given that the Secretary of State is the primary decision maker and the agency best equipped to have regard to the section 55 guidance and, furthermore, had not yet performed its section 55(3) duty. Limited by the operative statutory constraints, the court determined that the appropriate course was to remit the case to a different constitution of the FtT.

[54]      Our review of the section 55 case law brings us to the most recent development, namely the decision of the Upper Tribunal ("UT") in Arturas.  The comprehensive judgement of the President, Lane J, makes a notable contribution to the jurisprudence in this field.  It reviews certain of the decided cases set out earlier in this judgment, paying particularly close attention to JG.  In para [2] above we have drawn attention to certain consequences of the decision in Arturas.  We consider that some aspects of Arturas require to be carefully examined.

[57]      As the preceding resume demonstrates the decision of this court in JG was incontestably fact sensitive.  The factual matrix in Arturas is rehearsed in paras [4]‑[9].  It does not resemble, even remotely, its counterpart in JG.  It follows that the UT's assessment that the two cases could not be distinguished on their facts is, with respect, unsustainable.

[58]      The analysis does not end at this point, however.  This is so because as the remainder of para [129], considered in conjunction with earlier passages, indicates one aspect of the reasoning of the UT is its view that if the appeal in JG had been brought in the jurisdiction of England and Wales or that of Scotland it would have failed.  The terminology used in this passage is that of "the law of England and Wales or the law of Scotland", repeated in para [132].  The UT further appears to suggest that an appeal of this kind can succeed only if it is "... the sort of unusual or exceptional case envisaged by the Court of Appeal in England and Wales."

[59]      Scotland. We pause to address one discrete issue. It appears to this court that the judgement of the UT establishes no basis for incorporating references to the law of Scotland.  The only mention of Scotland in the judgment is found in its consideration of ZG v Secretary of State for the Home Department [2021] CSIH16, a decision of the Inner House, at paras 90]–[97].  ZG is a paradigm illustration of a carefully reasoned appellate court decision which, ultimately, turned on the question of whether the main issue - in that case, the assessment of the best interests of the child concerned - had been lawfully determined by the first instance tribunal.  This intensely fact sensitive question was answered in the affirmative by the Inner House for the reasons summarised by Lord Doherty at para [38].  At para [37] the House had the following to say of the outcome of JG:

"Crucially [the NICA] concluded that the evidence before the FtT has not provided it with a proper basis to identify the best interests of the elder of the applicant's two children and to treat those interests as a primary consideration when it determined whether the interference with this child's Article 8 right to family life was justified. A psychology report which the applicant had submitted to the FtT was dismissed by the court as not having addressed the material issues. The FtT had not had the benefit of materially different information from the information which had been before the respondent."

Thus, the Inner House reasoned, JG was an illustration of the second of the three scenarios identified in MK (Sierra Leone) [see para [40] supra], namely -

"[a case] where the Tribunal forms the view that the evidence is insufficient (... to conduct a properly informed assessment of the child's best interests ... thus triggering the first of two options, namely) .... to consider such further relevant evidence as the appellant can muster and/or to exercise case management powers in an attempt to augment the available evidence."

[60]      Significantly, the Inner House in ZG did not identify anything untoward in the reasoning of the NICA in JG.  Its decision contains no hint that JG (or any of the preceding first instance Northern Ireland cases) is in some way out of kilter with the leading cases in either of the other two jurisdictions.  Furthermore, it is noteworthy that this in a context where the Inner House had considered the leading UK jurisprudence: see paras [20]–[25] and [27].

[61]      In advance of the hearing the court formulated certain questions to be addressed by the parties in their written and oral argument. Both parties responded positively. One of the questions posed by the court was whether it is possible to identify in the decision in Arturas the foundation of the Upper Tribunal's statement in Arturas that Northern Irish law in the subject matter under scrutiny differs from that in England and Wales and Scotland.  The relevant submission on behalf of the Secretary of State did not support this aspect of the Arturas decision.  This submission highlighted that in ZG the Inner House had distinguished JG on its facts.  The submission further drew attention to the observation of the Inner House that in immigration appeals the jurisdiction of the FtT is wider than that exercised in judicial review challenges.  The appellant's position was in substance the same.

[62]      We return to the phraseology of "the sort of unusual or exceptional case envisaged by the Court of Appeal in England and Wales" in para [129] of the UT's decision.  We interpret this as referring in particular to SS (Nigeria) and AJ (India), which we have summarised above.  These decisions were the subject of detailed consideration by the UT (differently constituted) in MK (Sierra Leone), also summarised above (at paras [42 - [44]): see paras [28]–[34].  In JG this court referred to these passages in its consideration of the appropriate order to be made: see para [37].  As the relevant passages in MK (Sierra Leone) make abundantly clear, one key element of the debate was that having regard to the statutory arrangements then prevailing one of the options available to the relevant tribunal (whether the FtT or the UT) was, in the event of finding a breach of either of the section 55 duties an order the effect whereof would be to require the Secretary of State to make a fresh decision, undertaking the necessary assessment, could be made.  However, with effect from April 2015 at latest this, by virtue of statutory reform, was no longer possible.  This was explicitly recognised by this court in JG: see para [39]. While, for the reasons given, this court lamented that this option was no longer available - see paras [37]–[39] - its order faithfully reflected this reality.  

[63]      This is, self-evidently, an important feature of the context in which SS (Nigeria) and AJ (India) were decided.  At that time effective remittal by either the FtT or the UT to the Secretary of State in the wake of a tribunal finding that either of the duties enshrined in section 55 had been breached was an available option, via the "otherwise not in accordance with the law" statutory ground of appeal. In both of those cases the English Court of Appeal expressed the expectation that this outcome would generally not be usual because it would normally be possible for the FtT, exercising its wider jurisdiction, to determine the relevant issues.  This ground of appeal, however, was extinguished soon thereafter.  This occurred as a result of the radical overhaul of sections 82 and 84 of the Immigration and Asylum Act 2002 (the "2002 Act") effected by the Immigration Act 2014 (the "2014 Act"): see section 15.  These fundamental changes took effect on 20 October 2014: see the Immigration Act 2014 (Commencement Number 3, Transitional and Saving Provisions) Order 2014. From this date the statutory landscape within which the decisions in SS (Nigeria) and AJ (India) had been made altered radically.  The decision in Arturas does not engage with any of the foregoing matters.

[64]      In SS (Nigeria) and AJ (India) one finds strong exhortations from the English Court of Appeal that the relevant tribunal should undertake the task of making the fresh decision required in the wake of a court or tribunal finding that either of the section 55 duties has been breached.  In JG this court, having accurately identified the statutory options at its disposal, in para [39], ordered remittal to the FtT.  At para [41] it explained that remittal to the FtT rather than the UT was preferable, given the distinctive functions of these two tribunals.  This court did not opt for the third of the alternatives available, namely remaking the impugned tribunal decision itself.  This was of course a statutory option.  However, the first instance tribunal - here the FtT - which has the fact-finding responsibility has available to it a range of procedural powers and arrangements which are not mirrored in NICA. See The  Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (Part 2 in particular) as amended and the related Practice Directions. 

[65]      This indeed applies to other first instance courts and tribunals. It is the well‑established practice of NICA to make remittal orders of this kind in a broad range of contexts, including all manner of appeals from tribunals, appeals from magistrates' courts and appeals from the several divisions of the High Court (in the exercise of its power under section 38(1)(b) of the Judicature (NI) Act 1978). The course taken in JG was entirely orthodox.

[66]      As appears from the foregoing, insofar as the UT was purporting to suggest in para [129] of Arturas that by virtue of SS (Nigeria) and AJ (India) the remittal order made by this court in JG should be confined to an "unusual or exceptional case" we beg to differ.  This order was fully harmonious with the role of the FtT as decision maker (as well as adjudicator) and entirely in alignment with the SS and AJ exhortations. Furthermore, it entailed an exercise of judicial discretion no aspect whereof is challenged in Arturas.  Additionally, the UT did not suggest that it considered itself in some way bound by the ratio decidendi of JG to decide the appeal in Arturas in the same way.  Rather, the constraint which is identified related solely to the facts of JG.  Given that there was no legal rule or principle in the JG decision constraining the choices available to the UT, we consider that this was not a sustainable basis juridically for the constraint expressed.

[67]      Given the element of judicial discretion in play in the disposal order for which the Court of Appeal opted in JG it would, in the abstract, be surprising if there were any sustainable grounds for challenging this.  This feature of the order in JG is not considered in Arturas.  Nor is any consideration given to the basis upon which this court exercised its discretion to remit the case to the FtT. In JG this court specifically identified what it considered to be the unsatisfactory features of the evidence bearing on the best interests of the two affected children which had been before the FtT at the initial appellate stage: see. The Inner House in ZG had no difficulty in identifying this aspect of JG.  Progressing from the particular to the general, this court then identified a host of reasons why the section 55(3) duty must be taken seriously and performed efficaciously and conscientiously: see paras [19]–[25], [33] and [37].  The decision in Arturas does not take issue with any of these passages. 

[68]      In Arturas, at para [110], the decision in JG is criticised (in terms) on the ground that it overlooked AJ (India).  This is not tenable.  The cases considered by this court in JG included MK (Sierra Leone) in which there was extensive consideration of the leading English Court of Appeal cases.  Furthermore, having identified at paras [3] and [29] significant evidential deficits in what was before the FtT, and having reached the uncontentious conclusion that a breach of section 55(3) had been established, this court gave consideration to the consequences thereof, at para [29]ff.  In its reasoning and by its order this court explicitly recognised that the options available to it excluded any order requiring the Secretary of State to remake the impugned decision.  By its order the case remained in the tribunal system. Though given the opportunity to do so, the Secretary of State has not argued in the present appeal that the JG order was not harmonious with the SS (Nigeria) and AJ (India) exhortations.

[69]      In Arturas, the decision in JG is criticised on the further ground of its description of the Secretary of State as "primary decision maker."  This invites a twofold riposte.  First, this description is correct. Second, as the decision in JG considered as a whole makes clear, this court was at pains to stress the opportunities lost in every case where the Secretary of State breaches its duties under section 5(3) by virtue of the practical difficulties attendant upon the FtT's ability to remedy such breaches.

[70]      In this context, we should mention that the parties drew to the attention of this court two FtT case management orders made consequential upon appellate remittal orders based on breaches of section 55(3).  In one of these cases (Arturas, by coincidence) the FtT directed the provision of a fresh bundle of evidence by the appellant to include updated witness statements and any "supporting documentation", to be followed by the Secretary of State's response.  In another case, the FtT made an order adjourning the hearing to facilitate the provision by the Secretary of State of "a supplementary decision letter dealing with the section 55 issue" in light of the JG decision, to be followed by the appellant's response.  As the submissions of both parties to this court made clear, it is commonplace for the FtT to consider additional evidence not previously considered by the Secretary of State.

[71]      It is appropriate to add that in every case where an appellate court is disposed to allow an appeal against the decision of a tribunal or court and determines that remittal is appropriate this has the important consequence of ensuring that the appeal rights at the disposal of the litigant concerned are revived.  The only court to which an appeal lies from decisions of the NICA is the UK Supreme Court and the scope for appeals of this kind is extremely limited.  

[72]      There are certain further features of the decision in Arturas which we would highlight:

(i)        Breach of the section 55(3) duty does not feature in any of the Supreme Court or English Court of Appeal decisions considered above and in Arturas.

(ii)       One of the clear themes of Arturas - reflected in paras [15]–[16], [30]–[31] and [98]ff - is that the section 55(3) statutory guidance is of intrinsically limited effect and scope.  It is suggested, in particular, that there is a sharp difference between the duties owed by UKBA to children and those owed by other statutory agencies.  While this partially correct, we consider that the statutory guidance is at some pains to highlight those respects in which these duties may be considered comparable and complementary whilst simultaneously emphasising - repeatedly - the themes of interaction, good communication and information gathering.  In our view the terms of the guidance are incontestable in these respects. 

(iii)      The statutory guidance recognises, in substance, that the realities of an individual case may be altogether different from the "ordinary position" identified in para [101], namely that the child's best interests lie in remaining with its parents.

(iv)      The elaborate arrangements in the statutory guidance for the training, supervision and accountability of UKBA officials in the sphere of the section 55(1) duty, by themselves, confound the view that the duties owed by UKBA officials to children are as limited as Arturas suggests.

(v)       The reasoning of the UT neither engages with, nor differs from, the heavy emphasis in JO (Nigeria) and MK (Sierra Leone) on the need for decision makers to be properly informed before assessing a child's best interests. The "primary responsibility" on parents and carers mentioned in para 2.7 of the statutory guidance is to be distinguished from "exclusive" responsibility.  This does not dilute in any way the uncompromising and inalienable statutory duty imposed on UKBA officials by section 55(1).

(vi)      "Every Child Matters (etc)" is an instrument of guidance.  It does not purport to be exhaustive or all encompassing and does not by its terms exclude the possibility that, in some fact sensitive context, a suitable report, expert or otherwise, should be commissioned by UKBA.

[73]      Furthermore, the decision of the UT Arturas does not grapple with the juridical reality that section 55(3) imposes on UKBA officials in all cases to which it applies a statutory duty.  We would observe that statutory duties are solemn in nature and compliance with them is not optional.  One troubling feature of Arturas is that it effectively absolves UKBA of its solemn legal obligations. Arturas does not challenge the suggestion in JG that there is no evidence of UKBA ever having discharged the section 55(3) duty.  Nor does Arturas challenge the reasoning in JG (and earlier decisions) that the agency best equipped to discharge the section 55(3) duty is UKBA, while in contrast the tools available to the relevant tribunal are substantially more limited.  No court or tribunal can lay claim to the training, expertise, communications arrangements and information gathering procedures detailed extensively in the statutory guidance. The JG description of the Secretary of State being the primary decision maker is to be considered in this light.

[74]      Moreover, Arturas does not engage with any of the following propositions in JG at para [23]ff:

(i)        In every case where a breach of the section 55(3) duty occurs the protection afforded to the child by section 55(1) is weakened and undermined.

(ii)       Section 55(3) exists to promote and ensure the due fulfilment of the substantive obligation under section 55(1).

(iii)      Every breach of the section 55 duty exposes the child concerned to the real risk that his or her best interests will simply be disregarded or inadequately assessed.

(iv)      Every breach of the section 55(3) duty generates the risk that the notional scales will not have been properly prepared, with the result that the balancing of the child's best interests with the other factors in play will be inadequate.

(v)       Every breach of the section 55(3) duty defies the will of Parliament. Such breaches are exposed only where resort is had to the court or tribunal. It is well known that legal challenges do not occur in large numbers of cases.  The result is that large numbers of children are being denied the protection which parliament has deemed necessary for them.

[75]      For the reasons elaborated above this court does not agree with the UT's assessment of the content of the statutory guidance. Independently, this court expresses concern that in Arturas there is disproportionate emphasis on the "south" side of the notional bright line, namely the content of the guidance at the expense of its "north" side, namely the solemn and unqualified statutory obligation of UKBA officials to have regard to the guidance in every case where this is required.  The decision in Arturas does nothing to encourage compliance by the Secretary of State and UKBA with their statutory duty to children. It is, rather, to the opposite effect. The persistent failure of UKBA to discharge this duty has been exposed judicially over a period of years and evidently continues unabated. This is a self-evidently disturbing state of affairs.

[78]      In AM the Upper Tribunal offered the following test, at para [60]:

"The test to be distilled from the Strasbourg jurisprudence is whether those affected by the decision under scrutiny have been involved in the decision-making process, viewed as a whole, to a degree sufficient to provide them with the requisite protection of their interests.  This procedural aspect of Article 8 is designed to ensure the effective protection of a person's substantive Article 8 rights.  As the decision of the Court of Appeal in Gudanaviciene makes clear there is a close association with the protections afforded by Article 6 ECHR when issues concerning the procedural embrace of Article 8 arise: see the judgment of Lord Dyson MR  at [70] - [71]. "

[79]      We consider that every breach by the Secretary of State of their statutory duty under s 55(3) is prima facie in contravention of each affected person's Art 8 right to a procedurally proper decision-making process in the determination of their substantive Art 8 right to respect to respect for family and private life. As appears from what follows, the question for the UT (in statutory appeals) and the High Court (in judicial review cases) will be whether such breach was satisfactorily remedied by the FtT.

The Consequences of the Section 55(3) Violation

[80]      The failure by the Secretary of State's officials to have regard to the statutory guidance in breach of their duty under section 55(3) of the 2009 Act is both uncontested and incontestable. It is necessary to address the consequences of this breach of statutory duty.

[81]      We take as our starting point the two main statutory provisions.   These are section 14 of the 2007 Act and section 55 of the 2009 Act. Both are silent on what the consequences of a failure of this kind should be. Furthermore, there is no judicial decision binding on this court mandating any particular course.

[82]      As appears from the above, this issue has been considered by this court, the English Court of Appeal, the Scottish Court of Session and the Upper Tribunal.  In JG this issue received extensive consideration, at paras [29]–[38].  In these passages this court considered that in a case of a demonstrated breach of the section 55(3) duty the two main questions which would typically arise were (a) whether the duty had been in substance discharged and (b) whether the failure to discharge the duty was of any material consequence.  As noted in para [47] above, while doubting whether the first of these possibilities would have any practical traction, this court nonetheless approved both.  In the present case, Mr McGleenan on behalf of the Secretary of State advocated espousal of the first option.

[83]      For this appellant and her two children the UK chapter of their story began in September 2018.  Their subsequent journey through the relevant administrative and legal branches of the UK has occupied a period of some 4½ years. The appellant's older child, her son, is now aged 20.  However, section 55 of the 2009 Act continues to apply fully to her daughter, who is now aged 16.  It is the daughter who has lain at the heart of the appellant's case since asylum was first claimed.

[84]      At this point it is necessary to bear in mind both the date of the Secretary of State's impugned decision (April 2019) and the ingredients of the best interests assessment namely the brevity of the daughter's residence in the UK (some six months) and her related lack of integration in this country.  This best interests assessment, which lacked the added content that a proper discharge of the section 55(3) duty could have provided, is now approaching its fourth anniversary.  This is a potent consideration per se.  Insofar as any fortification is required this is found in the submissions of Mr Mulholland KC and Mr Peters, of counsel, that the best interests passages in the impugned decision of the Secretary of State are couched in perfunctory and formulaic terms.

[85]      In a context where the fourth anniversary of the impugned decision of the Secretary of State is approaching and three years have elapsed since the decision of the FtT, there is no evidence before this court about how the life circumstances of the appellant's 16 year old daughter have evolved during these important teenage years or of anything else potentially having a bearing on the assessment of her best interests.  Those interests are not necessarily confined to matters touching upon her right to respect for private and family life under Article 8 ECHR.  Furthermore, we remind ourselves that this teenage girl is the person in respect of whom the prohibition against torture or inhuman or degrading treatment under Article 3 ECHR falls to be considered.

[86]      This court further takes into account the vintage of the so-called "country evidence" relating to conditions in Nigeria in relation to the FGM issue.  It is now of almost four years vintage and its lack of currency is an illustration of one of the issues which the FtT will be well equipped to investigate and evaluate. The same observation applies to the discrete issue of the reasonableness and feasibility of internal relocation in Nigeria.

[87]      To the foregoing we would add the following. Mr McGleenan submitted, correctly, that in any case where issues under either section 55(1) or section 55(3) of the 2009 Act have not been ventilated at any relevant stage, administrative or judicial, this will be a matter of some significance.  Its significance will turn largely on whether the issues later raised - whether for the first time or in different or fuller terms - are in the opinion of the court or tribunal concerned of any merit or substance.  However, any failures of this kind on the part of an appellant will not be automatically fatal.

[88]      This court considers it compatible with the judicial oath of office and the judicial duty to act in accordance with the rule of law that judges should be alert to possible section 55(1) and section 55(3) issues in every case where children form part of the litigation equation.  Recourse to the plea that such issues were not expressly raised in grounds of appeal finds no justification in either section 55 itself or section 14 of the 2007 Act.  The more so when one recalls that a breach of neither of these statutory provisions operates as either conferring a right of appeal to the FtT or as a ground for allowing an appeal.  Furthermore, since the twin section 55 duties belong to the realm of one of the protected Convention rights, namely Article 8 ECHR, tribunals and courts must be alert to their inalienable duty under section 6 of the Human Rights Act 1998.

[89]      There is a further consideration of some moment. It has frequently been stated that judicial decision making in the fields of immigration and asylum is undertaken by expert tribunals.  The Supreme Court has explicitly recognised this. See for example R (on the application of MM (Lebanon)) (appellant) v Secretary of State for the Home Department (Respondent) [2017] UKHL 10, at para [107] and R (on the application of Cart) (appellant) v The Upper Tribunal (Respondent) [2011] UKISC 28 at para [13].  The Northern Ireland Court of Appeal does not share this expertise. This court is also alert to the case management powers which the FtT can exercise: see the illustrations provided in para [67] above, coupled with (for example) rules 2 - 5 of the 2014 Rules. It was explicitly acknowledged on behalf of the Secretary of State that this court did not err in the order which it made in JG, whereby the case was remitted to the FtT.

[90]      We accept that, in principle, a breach of the s 55(3) duty by the Secretary of State's/UKBA's agents can be remedied (however unsatisfactorily) by either the FtT or the UT. This is the irresistible effect of the post - 2014 statutory arrangements, as JG recognised. However, in the instant case neither the FtT nor the Upper Tribunal engaged with the Secretary of State's breach of the section 55(3) duty.  Thus, the breach remains unremedied. The potency of this indelible juridical reality is unmistakeable. Furthermore, this court has no basis for concluding that this breach of the statutory duty had no material impact on such best interests assessment as was conducted by the two tribunals.

[93]      The foregoing analysis and considerations impel to the conclusion that the appropriate order in this case is to allow the appeal and remit to the FtT, differently constituted, for the purpose of making a fresh decision.  For the combination of reasons rehearsed in the preceding paragraphs this court is of the clear view that the uncontested breach of section 55(3) in this case cannot be dismissed as immaterial or technical and can be remedied only by appropriate judicial investigation and determination.  The FtT, given its case management powers, is the forum best suited for this exercise.  The FtT will doubtless wish to consider in particular paras [85] - [86] above, in tandem with its case management powers.

Some discrete issues

[94]      In the case management phase of this appeal the court raised specific issues and questions with the parties and invited them to supplement their skeleton arguments accordingly.  Both parties participated co-operatively in this exercise, for which the court is grateful.  Having regard particularly to the terms in which counsel for the Secretary of State responded, we take this opportunity to make the following matters clear beyond peradventure:

(i)                The breach of section 55(3) is committed by a failure of the Secretary of State's officials and/or the tribunal, on appeal, to have regard to the statutory guidance.

(ii)              We repeat: in such cases the issue before the tribunal, on appeal, or the High Court on judicial review is not whether the impugned decision is in some way vitiated by a failure to take one or more of the steps specified in the guidance.  Arguments to this effect are fallacious because they conflate the two quite separate stages in play.  Rather, the breach is constituted by a failure to have regard to the guidance.   

(iii)           At the first stage, the official, or tribunal, must have regard to the statutory guidance. This will not necessarily generate a second stage.  However, in cases where a second stage is triggered the focus on appeal or judicial review will be on what occurred at that stage.

(iv)            The duty is to consciously and conscientiously have regard to the statutory guidance. Tribunals and courts will always be alert to the superficial and perfunctory.

(v)              Almost invariably only the Secretary of State or, on appeal, the tribunal will be able to demonstrate that conscientious regard was had to the statutory guidance. The litigant will normally be powerless in this respect. This must be borne in mind should arguments based on burden of proof be ventilated, particularly in the context of a jurisdiction whose public law and inquisitorial characteristics are incontestable.

(vi)            While, for the reasons explained above, a failure by the litigant to raise either a section 55(1) issue or a section 55(3) issue at the earliest stage will not necessarily be fatal, tribunals and courts will always be alert to probe the reasons for this and to identify any possible misuse of their process.

(vii)         In cases where a breach of the section 55(3) duty is demonstrated, ie the typical case, the FtT must attempt to remedy this failure. Alertness, diligence, careful preparation and due enquiry on the part of both any instructed legal representatives and the FtT will be required.  Given the heightened attention which section 55(3) has increasingly been receiving at various judicial tiers, this court is confident that previous oversights and aberrations should be unlikely to occur.

(viii)       In cases where the section 55(3) breach is not adequately remedied by the FtT this may give rise to a successful appeal or a successful judicial review challenge in the event of permission to appeal being refused.

(ix)            The two species of legal challenge which section 55(3) issues have generated are statutory appeal and judicial review. As this judgment has made clear, in the case of statutory appeals the FtT exercises what might be described as an "extended" jurisdiction. However, in the case of judicial review the High Court exercises a specific, narrower supervisory jurisdiction which does not mirror that of the FtT.

(x)              We agree with the submission on behalf of the Secretary of State that it is plainly preferable that section 55 issues should be canvassed in clear terms and at the earliest opportunity.  However, in an imperfect world, this will not always be feasible and, as a matter of law, a failure to do so will not be fatal per se.  The world inhabited by the genuine asylum applicant is one in which normative ideals are frequently far from achievable.

Order

[96]      For the reasons given the appeal is allowed and the case is remitted to a newly constituted FtT for de novo consideration and determination in accordance with the judgment of this court.