The Administrative Court declared that a policy which does not give effect to section 55 of the Borders, Citizenship and Immigration Act 2009 is not lawful. The excellent Amanda Weston of Tooks Chambers for the Claimants and Joanne Rothwell of No 5 Chambers for the intervener, Coram Children’s Legal Centre (CCLC), argued that where there had been findings that the removal of a child would breach his or her human rights, the SSHD’s failure to consider granting Indefinite Leave to Remain (ILR), when requested to do so, and to, instead, grant Discretionary Leave (DL) as a matter of course is wrong.

Holman J in SM & Ors v Secretary of State for the Home Department [2013] EWHC 1144 (Admin) considered the application for Judicial Review lodged on behalf of the Claimants. The Claimants were all children, referred to as SM, TM, SR, DB, and JD and aged between 10 and 6 years old. They are all related to each other either as siblings or as cousins (or in the case of JD as aunt/nieces/nephew). All were born in the United Kingdom at times when their respective mothers were overstayers. All have lived continuously in the UK. There are also other members of their extended family living here in the UK.

Each of the children’s/family’s appeals were allowed by an Immigration Judge under Article 8 of the ECHR.  These appeals were not challenged and the Claimants were subsequently granted 3 years DL under the DL policy, version dated 27 October 2009.  The minor Claimants had however requested that the SSHD grant them ILR.  Following the grant of DL instead, they sought to judicially review this decision arguing that if s55 had been correctly interpreted, they would qualify for a grant of ILR.

There were essentially two issues to be decided in the case:

• Is the DL policy document and instruction capable of being read and applied in a way which is compliant with section 55 and the associated jurisprudence?  If not, the policy is unlawful, and the decisions under review, which were taken by reference to it, should be reconsidered.
• If the policy is capable of being read and applied in a way which is compliant with section 55 and the associated jurisprudence, did the actual decision-maker fail to read and apply it correctly ? If he did fail, the decisions should also be reconsidered.

Section 55 of the Borders, Citizenship and Immigration Act 2009, which came into force on 2 November 2009, provides as follows:

55 (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) …..

(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) …; (c) …; (d)…

(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).

Submissions were put forward by the Claimants and the intervener that children cannot be expected to put their personal development on hold, much less comply with the provision that there are to be continuous and uncertain applications for DL in order to regularise the children’s stay.  Also the overarching principle argued by counsel was that, where a child’s future lies in the United Kingdom then “it is clear from the outset that a child’s future is going to be in the UK” and therefore ILR should have followed the SSHD’s decision.

Holman J stated that the policy itself was not compliant with s55:

In my view the effect of the language of the policy and instruction document as a whole is to preclude the decision maker from even considering an applicant, whether adult or child, as being eligible for ILR until he or she has completed at least six years of DL. The use of the word “normally” is explained by the reasons I have described and does not of itself admit of any exception or qualification in relation to children. The general words in the introduction are excluded from the consideration of the duration of leave by the clear language of the later passages.

He concluded by stating that this blanket policy of granting 3 years DL was in fact a direct contradiction of the SSHD’s policy that “every child matters”.  The decision did not take into account the fact that the required future applications for further DL would create anxiety and for example, inconvenience a child’s schooling and impede their access to healthcare.  This would, in effect, have an adverse effect on the child, even bearing in mind the continuing leave provisions under section 3C of the Immigration Act 1971.

The conclusion was as follows:

In my view the relevant 2009 Discretionary Leave policy and instruction document is unlawful. It effectively precludes case specific consideration of the welfare of the child concerned in making the discretionary decision whether to grant limited DL or ILR. Further, and contrary to the submissions of Ms Broadfoot, that is the way senior officials at the UKBA intend the policy to be applied, at all events save in an “exceptional case” which “very rarely arises if at all.” The policy and instruction fail to give proper effect to the statutory duty under section 55. Even if the policy can be read in the way contended for by Ms Broadfoot (but not by the senior official, Mr Gallagher), that is not the way in which the actual decision maker, Mr Harrison, read and applied it. He, too, would graft on a need for exceptional or compelling features.

These reasons, separately or cumulatively, render the actual decisions in the case of each claimant unlawful. I will allow the claims for judicial review and order the Secretary of State to reconsider each claim with a fresh mind and properly applying section 55.

The Court, it seems, is taking a realistic view on the impact and uncertainty faced by a minor who is granted limited leave as an acknowledgement of his or her Article 8 rights established in the UK and who will realistically and eventually be granted ILR. This is a welcome decision for minors who do not of course realise the implications of these decisions and often remain in a state of limbo for a number years before the SSHD gets round to granting either the extension of DL or, in the end, ILR.

Having said that, the decision in SM and others potentially conflicts with an earlier decision of the Administrative Court in the case of Alladin v SSHD [2013] EWHC 1406 (Admin), published on 30 April 2013.  Arguably, this decision was not premised on findings by an Immigration Judge allowing the appeal under article 8. In addition, it is also unclear which version of the policy guidance was being considered.

However it does seem that HHJ Allan Gore QC, sitting as a Deputy High Court Judge, in Alladin adopted a more conservative approach and gave much more lea-way to the SSHD’s policies and areas of discretion compared to Holman J in SM and others, who, as we’ve seen above, interpreted the remit of the s.55 duties much more widely. This conflict within the High Court will presumably call for guidance from the Court of Appeal, so there may be more on this soon!