Duncan Lewis

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Discretionary leave to immigrant children seeking indefinite leave to remain was unlawful rules High Court

Date: (13 May 2013)    |    

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Before determining the period of leave to remain is granted to the immigrant children the welfare and best interests of the children must be considered the High Court has ruled.

Granting of short term leave and then subsequently extending it for another short period could leave the children in a state of Successive grants of short periods of leave can leave children in a limbo and may harm their welfare the High Court said.

SM and TM and JD and Others v SSHD [2013] EWCA 1144 (Admin) concerned a challenge to refusal of grant of indefinite leave to children under article 8 of the ECHR, who had been granted leave to remain for three years but in short periods.

Coram Children's Legal Centre (CCLC) intervened in the case.

In the SM and TM case the court found that the Home Office policy on discretionary leave to remain was unlawful. The case concerned foreign national children who had been granted discretionary leave to remain, but who were then refused indefinite leave to remain when a request was made.

The immigration solicitor for CCLC said they were delighted that the court had confirmed that the children’s interests were of primary consideration in all immigration decisions affecting them.

She added that the judgment has recognised that repeated grants of temporary status can be damaging to the welfare of children and contrary to their best interests. Children needed stability and security and this should be the major consideration into all decisions that the Home Office has to factor while affecting them.

The home secretary must now amend the relevant Home Office policy to make it lawful.

CCLC provided the court with evidence of the consequences on a child's mental health, welfare and development caused by temporary status, and reminded the court of the government's duty to safeguard children under section 55 of the Borders, Citizenship and Immigration Act 2009.

The High Court has relied on the Supreme Court’s decisions in ZH(Tanzania) v SSHD [2011] UKSC 4, [2011] 1 FLR 2170 and HH and Others [2012] UKSC 24, both of which clearly stated that the children’s best interests must be a primary consideration in all decisions making about them or affecting them.

The judgment also requires that the Secretary of State amend the relevant discretionary leave policy to ensure it is lawful. CCLC has also requested that in future, Home Office caseworkers treat the best interests of the child as a primary consideration in all their decisions affecting children.