MK (Section 55 – Tribunal Options): UTIAC 15 Apr 2015

UTIAC (i) Where it is contended that either of the duties enshrined in section 55 of the Borders, Citizenship and Immigration Act 2009 has been breached, the onus rests on the appellant and the civil standard of the balance of probabilities applies. There is no onus on the Secretary of State.
(ii) As regards the second of the statutory duties [the need to have regard to statutory guidance promulgated by the Secretary of State], it is not necessary for the decision letter to make specific reference to the statutory guidance.
(iii) The statutory guidance prescribes a series of factors and principles which case workers and decision makers must consider.
(iv) Where the Tribunal finds that there has been a breach of either of the section 55 duties, one of the options available is remittal to the Secretary of State for reconsideration and fresh decision.
(v) In considering the appropriate order, Tribunals should have regard to their adjournment and case management powers, together with the overriding objective. They will also take into account the facilities available to the Secretary of State under the statutory guidance, the desirability of finality and the undesirability of undue delay. If deciding not to remit the Tribunal must be satisfied that it is sufficiently equipped to make an adequate assessment of the best interests of any affected child.

McCloskey J, P UT, Perkins UTJ
[2015] UKUT 223 (IAC)
Borders, Citizenship and Immigration Act 2009 55
England and Wales


Updated: 30 December 2021; Ref: scu.547339