Legal Update: In a Nutshell - Home Office policy found to be unlawful

The High Court upheld the rights of children affected by immigration decisions in a judgment handed down this month. Coram Children’s Legal Centre acted as the intervener in the case – SM and TM and JD and Others v SSHD [2013] EWCA 1144 (Admin).

What was the case about?
The case concerned a challenge, brought by five foreign national children, to the Home Office’s then discretionary leave to remain policy, published in 2009. The policy was most commonly applied to cases in which people had been granted the right to remain in the United Kingdom to prevent a breach of their right to a private and/or family life under Article 8 of the European Convention on Human Rights. The standard duration of a grant of leave to remain under this policy was three years. Following that, a further application would need to be made and, if successful, a further three years would be granted. It was only after six years of discretionary leave to remain that a person would be permitted to apply for indefinite leave to remain or settlement.

What did the claimants want?
The five children in the case had all been born in the UK and had lived here all their lives. All had been granted three years’ leave to remain, in accordance with the policy. They had asked for indefinite leave to remain on the grounds that it was in their best interests and needed to safeguard and promote their welfare. However, the Home Office had refused their request. The children sought judicial review of this decision.

What did the High Court decide?
The court decided that the discretionary leave policy in question was unlawful because it failed to consider the welfare and best interests of the child before deciding the period of time for which leave to remain should be granted. In deciding this, the court recognised that successive grants of short periods of leave to remain can leave children in limbo and may, therefore, be contrary to their welfare.

The court therefore concluded that the Home Office would need to revise this policy, in order to ensure that it is lawful.

Who will be affected by the judgment?
The judgment may affect families with children who have been granted three years discretionary leave to remain.

Potentially, such a decision was unlawful if it failed to consider whether there were any factors relating to the children’s best interests and welfare which should have led that child to be granted more than three years leave to remain or indefinite leave to remain. Families who were granted three years leave to remain and are applying for a further period of leave under the policy will also be affected as the further decision must consider whether a longer period of leave to remain should be granted to the children.

Any families who think they may be affected by this judgment should seek quality legal advice as soon as possible.

For more information, contact the Migrant Children’s Advice Line on 020 7636 8505

Legal Update is produced in association with experts at Coram Children’s Legal Centre

For free legal advice to frontline professionals on all child protection and safeguarding issues call 020 7636 1245

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