There are a number of interesting findings in the Court of Session judgment, published today, in DN against Secretary of State for the Home Department [2017] CSOH 144.

DN is a Ugandan child who applied for entry clearance to join her mother in the UK. Her mother holds discretionary leave (DL) to remain. DN’s application and subsequent appeal were refused, and her applications for leave to appeal were also refused.

Interpretation of paragraph 301

Lady Carmichael, sitting in the Outer House, found that despite DL in most cases being a path to eventual settlement in the UK

the expression “limited leave to enter or remain in the United Kingdom with a view to settlement” in paragraph 301 of the Immigration Rules is not intended to encompass DL [paragraph 59].

Discrimination

DN argued that

if paragraph 301 does not apply to her, that represents unlawful discrimination in the way in which the state approaches a decision which engages her Article 8 rights, based on [the mother’s] status as a person with DL. There has therefore been a violation of [her] rights under Article 14 ECHR read with Article 8 [paragraph 60].

Lady Carmichael agreed:

I have been presented with no material indicating that the difference in treatment was the result of due consideration of the issues which might inform a policy choice. In the absence of any such material, it is difficult to reach any conclusion other than that the purported justification was manifestly without foundation. No foundation has been demonstrated. The difference in treatment is unlawful [78].

… justification for differences in the treatment of children in relation to the provision made for them to join their parents, made on the basis of the immigration status of their parents, requires careful scrutiny [79]

This is a rare and a significant finding of discrimination and it will be interesting to see how (if at all) it will be taken on board by the Secretary of State.

Sole responsibility

Lady Carmichael also confirmed that the First-tier Tribunal’s approach in TD (Paragraph 297(i)(e): “sole responsibility” Yemen [2006] UKAIT 00049 to the assessment of “sole responsibility” in the context of an application by a child to join a parent in the UK is sound and should continue to be applied. A failure by an FTT judge to follow the approach in TD is an error of law. (See paragraphs 23-36.)

This finding will be of interest to practitioners searching for a more up-to-date authority on the criteria to be considered in applications where “sole responsibility” is at issue.

The second appeals test

Findings were also made in relation to the second appeals test, which at this stage will likely only be of interest to practitioners in Scotland and can be read in full at paragraphs 80-100.