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Home Office policy on discretionary leave for children to remain is unlawful

New High Court judgment upholds the rights of children affected by immigration decisions

In SM and TM and JD and Others v SSHD [2013] EWHC 1144 (Admin) Holman J has found in favour of children who had challenged the Home Office policy on discretionary leave to remain. The court held that the policy, which was in force at the time the decisions were made in respect of the children, was unlawful as it failed to consider the welfare and best interests of each child before deciding the period of time for which leave to remain should be granted. The High 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 case concerned foreign national children who had been granted discretionary leave to remain for three years under Article 8 of the European Convention on Human Rights. The children had asked for indefinite leave to remain but had been refused. The challenge was to the refusal to grant indefinite leave to remain.

Coram Children's Legal Centre (CCLC), as interveners in the case, provided the court with evidence of the consequences on a child's mental health, welfare and development caused by temporary status, as well as expert opinion on the government's duties to safeguard children under section 55 of the Borders, Citizenship and Immigration Act 2009. In addition, it addressed the UK's obligations under the UN Convention on the Rights of the Child to consider children's best interests in immigration decisions, as well as the public interest in promoting the wellbeing of children as a benefit to society.

Holman J applied the Supreme Court's judgments in ZH (Tanzania) v SSHD [2011] UKSC 4 and HH and Others [2012] UKSC 24 and 25. These cases make it clear that children's best interests must be a primary consideration in all decision-making about them or affecting them. The High Court in this case confirmed once again that the test for assessing the best interests of children contains no 'exceptionality' requirement.

The effect of this judgment is that the welfare and best interests of children must be considered before determining the length of leave to remain that they are granted.

The judgment requires the Home Secretary to amend the relevant discretionary leave policy to make it lawful. In the light of this judgment, Coram Children's Legal Centre is calling for the Home Office to review all policies to ensure that they are child-rights compliant. Policies must ensure that Home Office caseworkers treat the best interests of the child as a primary consideration in all their decisions affecting children.

Sophie Freeman, instructing solicitor at Coram Children's Legal Centre, said:

"We are delighted that, once again, the court has confirmed that children's interests must be a primary consideration in all immigration decisions affecting them. This judgment recognises that repeated grants of temporary status can be damaging to the welfare of children and contrary to their best interests. Children need stability and security and this must be factored into all decisions that the Home Office makes affecting them."

Amanda Weston of Tooks Chambers (instructed by Luqmani Thompson) acted for all the claimants. Samantha Broadfoot of Landmark Chambers (instructed by The Treasury Solicitor) acted for the Home Secretary. Joanne Rothwell of No 5 Chambers (instructed by Coram Children's Legal Centre) acted for CCLC as intervener.

The judgment can be read here.