SM & Anor v SSHD [2013] EWHC 1144 (Admin)

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This case examined how the welfare and best interests of children must be considered in immigration cases before the Home Office decides the length of leave to remain to grant.

The case concerned five children aged between six and ten who were all born in the UK to parents who did not have leave to remain. They had eventually been granted discretionary leave for three years on the basis of their right to respect for private and family life under Article 8 of the European Convention on Human Rights.

The judicial review was against the decisions by the Home Office to grant three years’ leave rather than indefinite leave to remain, as requested by the children. The challenge was brought on the basis that the relevant policy, and the Home Office’s application of it, failed to promote the well-being of the children in accordance with the Home Office’s statutory duties under section 55 of the Borders, Citizenship and Immigration Act 2009 and was contrary to the provisions of the UN Convention on the Rights of the Child. Coram Children’s Legal Centre intervened in the case.

The case related to the Home Office policy on discretionary leave which was in force at the time the children were granted leave. By the time of the hearing in April 2013 that policy had been replaced by new provisions, but there are still children whose cases relate to the old policy. Furthermore, the judgment now calls into question the lawfulness of other, similarly decided cases and may have implications for how the new policy and rules are to be interpreted.

The judgment is important because it upholds the rights of children affected by immigration decisions and discusses the way in which their best interests should be considered. 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 granted, and a blanket application of a fixed, limited period of leave in children’s cases is unlawful. The Home Office did not appeal against the judgment.

Relevant points in the judgment

  • The Home Office policy on Discretionary Leave to Remain, which was in force at the time the decisions in question were made, was held to be unlawful as it failed to consider the welfare and best interests of the 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 be contrary to their welfare.
  • In deciding this case, the High Court applied the Supreme Court’s judgment 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 Home Office policy in question in this case was amended in June 2013 to comply with the High Court’s judgment.

Read the full judgment here.