Important Court of Appeal ruling on children’s settlement applications

The case concerns a settlement application made on behalf of a child under paragraph 297 of Part 8 which was instead granted as limited leave under Appendix FM because although her father was a British citizen resident in the UK, her mother only had limited leave.

The Court of Appeal in R (Kone) v Secretary of State for the Home Department [2025] EWCA Civ 1653 held that it was not open to the Home Office to decide the application under Appendix FM, finding that the applicant was not excluded from para 297 just because one of her parents had limited leave.

The decision is potentially more consequential than it might appear at first glance.

Background

Ms Kone is an Ivorian national who applied for entry clearance under para 297 to join her parents in the UK in April 2015 while she was still under 18. Her father is a British citizen, resident in the UK, and her mother had limited leave. Although this isn’t specified, it is likely that at this time, her limited leave was in a route that did not permit her to sponsor her daughter.

The application was refused for unspecified reasons. It seems that the application was made on the basis that one of her parents was settled in the UK and there were serious and compelling circumstances that made her exclusion undesirable, as this was the finding of the tribunal:

It further held that there “were persuasive and powerful circumstances, which can rightly be categorised as compelling” for allowing the respondent to join her family in the United Kingdom.

However, she had failed to provide a tuberculosis certificate so the appeal was dismissed on this narrow ground.

She lodged a new application on 3 October 2018 on the same basis, this time enclosing a tuberculosis test certificate, which was refused on 18 June 2019. At the same time, the Home Office granted her limited leave as a child under Appendix FM.

Ms Kone arrived in the UK on 9 July 2019 and sought judicial review of the decision to refuse her application for settlement. The claim was withdrawn on the basis that the Home Secretary would reconsider her application within three months, with both parties in agreement that the sole issue at stake was whether she should have been granted limited leave (under Appendix FM) or settlement (under para 297).

On 17 October 2023, the Home Secretary refused the application once more on the following grounds:

As both your parents are living together in the United Kingdom, you do not meet the requirements of 297(f) as this applies to “one parent or relative”. This also requires there to be serious and compelling circumstances that make exclusion of the child undesirable.

[…]

When you re-applied in 2018, your circumstances had changed. Your mother now had limited leave to remain under the 10 year Family and Private Life Route. Therefore, the ECO considered your application under the Child Appendix FM rules, which was the correct route based on your circumstances.

In section D-ECC rule 1.1 of Appendix FM, it states that if the applicant meets the requirements for Entry Clearance, the child will be granted entry clearance of a duration which will expire as the same time as that granted to the Applicant’s parent, and will be subject to the same conditions in respect of recourse to public funds as that parent. Thus in line with this policy, we issue children in line with the parent who has the least leave.

The claimant pursued judicial review once more.

Upper Tribunal

On 30 July 2024, the Upper Tribunal found in favour of Ms Kone and quashed the decision in question, finding that applicants are not excluded from relying on para 297 just because one of their parents has limited leave:

29. In my view, the natural and ordinary meaning of the requirement in paragraph 297(i)(f) is clear and does not give rise to any mischief or unintended consequences which would require a reading in to the provision of any additional words or qualification as suggested by the Respondent. There is no exclusion based on the initial reference to ‘a parent’, nor any choice between sub-paragraphs of the Immigration Rules ad consequential construction of paragraph 297(i)(f) that could be tied to the intention of a particular applicant. Further, there is no implicit inclusion of the word ‘only’ before a parent; the requirement is simply that one parent is present and settled in the United Kingdom without any specification of where the other parent is or what their status is.

There was also a finding about how the “exclusion undesirable” test is supposed to work, in response to the Home Secretary’s argument that because Ms Kone had leave the remain in the UK, whether her exclusion was undesirable was a moot point:

48. First, there is an analogy which can properly be drawn with the interpretation of the test in section 117B(6) of the Nationality, Immigration and Asylum Act 2002 that it “would not be reasonable to expect the child to leave the United Kingdom”. Although phrased slightly differently, the provisions are in place for the same purpose, to enable an assessment of the best interests of the child and to consider whether there are reasons in that context for them to be in the United Kingdom and with a family member here.

49. There is no clear difference between the ‘reasonable to expect’ wording and ‘exclusion undesirable’ in practical terms; the assessment is a similar one with a similar set of relevant factors to take into account when determining it. The two can not be distinguished on the basis that one considers whether the status quo can be maintained and one considers whether there should be a change; given that exactly the same wording is also used in paragraph 298(i)(d) of the Immigration Rules which is an in-country application for indefinite leave to remain and therefore would also, as a matter of practicality, require an assessment not of maintaining the status quo of the child being outside of the United Kingdom, but consideration of whether they should be removed, in exactly the same kind of situation as section 117B(6) of the Nationality, Immigration and Asylum Act 2002 would apply.

In effect, it’s irrelevant that the claimant would not in reality be excluded from the UK; the test is whether her exclusion is undesirable regardless of the actual state of affairs, which means that the provision applies even in circumstances where the applicant would not, in fact, be excluded from the UK.

The Home Secretary appealed the decision to the Court of Appeal on three grounds, in which the Upper Tribunal is said to have erred:

(1) by holding that the fact that entry clearance or leave to enter or remain had been granted was not significant in deciding whether “there are serious and compelling family or other considerations which make exclusion of the child undesirable”

(2) by interpreting paragraph A277B of the Immigration Rules as requiring an application for indefinite leave to enter to be considered before, and in priority to whether to grant leave to enter or remain under Appendix FM to the Immigration Rules;

(3) by interpreting paragraph 297(i)(f) as applicable in circumstances where both parents were present in the United Kingdom.

Court of Appeal

In a unanimous decision, the Court of Appeal dismissed the Home Secretary’s appeal on all grounds.

With respect to the proper interpretation of para 297(i)(f), it held that the words should be given their natural meaning, so having a settled parent in the UK is sufficient, regardless of where the other parent is or the nature of their status:

25. Sub-paragraph (f) sets out the three circumstances that must be satisfied for that sub-paragraph to be satisfied. They are that (1) “one parent or a relative is present and settled in the United Kingdom” or is being admitted for settlement and (2) “there are serious and compelling family or other considerations which make exclusion of the child undesirable” and (3) suitable arrangements have been made for the child’s care.

26. First, as a matter of language, a child seeking indefinite leave to enter will satisfy the first of those circumstances if one parent is present and settled in the United Kingdom. The subparagraph does not impose any requirements in relation to the other parent (i.e. whether that parent has to be settled or have limited leave to remain in the United Kingdom or must not be in the United Kingdom). It is sufficient if one parent is present and settled.

The court also rejected the argument that “the Immigration Rules could only be read coherently if they required the child to be granted one type of leave only, and that that leave should be equivalent in duration to the shortest leave enjoyed by one of the parents” (para 33):

First, a child may be able to meet the requirements under the Immigration Rules for the grant of more than one status – e.g. indefinite leave to enter, and limited leave. It is a matter for the child to determine whether he wishes to apply for indefinite leave (or limited leave only) and the role of the Secretary of State is to determine whether the child meets the requirements for the grant of the type of leave for which the child has applied. Part 8 of the Immigration Rules does not require the Secretary of State to consider, and give priority to, a shorter type of leave than was actually applied for.

[…]

In particular, there is nothing to suggest that a child is precluded from applying for indefinite leave to enter under paragraph 297(i)(f) simply because he could apply for limited leave under Appendix FM. There is nothing to suggest that the Secretary of State may, or must, consider whether to grant limited leave under Appendix FM before considering the application for indefinite leave made under paragraph 297(i)(f).

This may be news to the Home Office, who has at times threatened to invalidate a perfectly valid indefinite leave to remain application on the basis that it was lodged under Appendix Long Residence because the applicant also qualified in another route, such as the private or family ten year route.

Although the settlement application in question was not refused on the ground that the Home Office was not satisfied that there are exceptional and compelling circumstances that would make her exclusion undesirable, the Home Secretary argued “that the fact that the respondent would not immediately be excluded from the United Kingdom was a relevant factor in deciding whether this requirement in paragraph 297(i)(f) was satisfied”.

The court, relying on AB (Jamaica) v Secretary of State for the Home Department [2019] EWCA Civ 661, resoundingly rejected this argument:

43. The question that this part of paragraph 297(i)(f) requires the Secretary of State to answer is whether, if the respondent were to be excluded, would that be undesirable?

44. In those circumstances, the fact that the child has been granted limited leave to remain is simply not a relevant fact. The immigration status of the applicant is not an issue to be considered. The sole issue is whether the child’s exclusion from the United Kingdom, if were to occur, would be undesirable. No one, least of all the Secretary of State, has suggested that the answer to that question is anything other than that it would be undesirable if this respondent were excluded.

The court agreed with both parties that the Upper Tribunal misinterpreted para A277B, which permits the Home Office to consider a grant under Appendix FM where an application for indefinite leave or limited leave falls to be refused under Part 8, as this was an application for indefinite leave to enter and so is outside of its scope. However, nothing turned on it and, in my opinion, this wouldn’t have assisted the Home Secretary in any case, as it only applies where an application under Part 8 falls to be refused.

Implications

I understand that the Home Office has applied for permission to appeal the decision to the Supreme Court. It is also open to her to change the relevant rule and this may happen in the grand overhaul of the system this year in any case.

But this could potentially have enormous implications for children of British or settled parents for as long as the rule lasts. At present, child dependants of Appendix FM partners apply for limited leave, in line with their non-settled parent, and do not settle until they do, which takes five years at a minimum and sometimes longer. However, following this decision, where the British/settled sponsor is the child’s parent, it may be possible to apply for settlement for the child immediately under para 297(i)(f) instead of spending many years and many thousands of pounds on extension applications.

It is also possible for children already in the UK to apply for indefinite leave to remain under para 298, which has an equivalent provision. In circumstances where both parents are in the UK, one of whom is settled or British while the other has limited leave, it is difficult to imagine the Home Office reasonably concluding that the exclusion of their minor child is desirable, if the application is carefully prepared with strong evidence. This is particularly the case if the child is already living with them in the UK, as the disruption of the status quo is one of the factors that would be taken into account as part of the assessment.

This doesn’t just apply to people here in a family route like Appendix FM, either. There is nothing stopping, for example, a family in the UK in the Global Talent route from making this application on behalf of their minor child when the main applicant settles, provided the child is under 18 at the date of application. As the main applicant will usually qualify for indefinite leave to remain after three years, while dependant partners need to complete five years, this may help their children settle earlier.

Although shaving off a couple of years off the qualifying period of a child may not seem that momentous, it would make an enormous difference to a 17 year old who would not be able to afford university otherwise, as without indefinite leave to remain they would be classed as an overseas student and pay correspondingly high rates.

Equally importantly, given the planned overhaul of the settlement system next year, there will undoubtedly be many cases where one parent has a much longer qualifying period than the other, potentially leaving the child on limited leave until they settle. This may provide a mechanism for them to settle earlier (assuming paras 297 and 298 survive the planned overhaul of the indefinite leave to remain system).

An additional benefit of para 297 and 298 is that they permit relatives, not just parents, to sponsor children (though such applications will inevitably be complex and with a higher risk of refusal). It will be rare that a non-parent relative qualifies under these rules but it is possible.

Finally, it’s also helpful as an authority for the proposition that an applicant can choose which application they would like considered and that it is not in the Home Office’s power to reject or refuse it simply because it believes another category is more appropriate.

I’d just like to finish by giving a massive shout out to Ms Kone, her family, the Coram Children’s Legal Centre and Patrick Lewis for doing such a sterling job and for pursuing this challenge in circumstances where I think most people would have given up following the grant of limited leave. Your perseverance might make a huge difference to many other families.