Grants of leave for children must comply with Section 55
In a High Court decision published in May, Mr Justice Holman examined the Home Office's policy of granting children discretionary leave
to remain in Britain for 3 years once they have gained permission to stay.
In the case of SM & Others v SSHD  EWHC 1144 (Admin)
, the judge looked into the policy's compatibility with present immigration rules and carefully examined the Home Office's duty to children under Section 55 of the Borders, Citizenship and Immigration Act 2009. Section 55 gives the Home office a duty to safeguard and promote the welfare children when making decisions which impact on them.
The question this judicial review application asked of the Court was: is UKBA's policy document on 'discretionary leave to remain' (grants given before 9 July 2012) compatible with Section 55
and any consequent case law?
This case involved 5 children between 6 and 10 years, each of whom were members of the same family, whose mothers had been allowed to stay in the UK on human rights grounds.
The Home Office considered that a grant to the children of indefinite leave to remain was inappropriate
, and like their mothers the youngsters were granted 3 years: a decision the children tested in the High Court.
Their lawyers argued that the youngsters cannot place their personal development on hold, and that granting only limited leave to remain would prolong an uncertain future
Although the Home Office argued there is little real difference between a grant of indefinite or discretionary leave to remain, Mr Justice Holman noted the children's barristers' argument that a grant of discretionary leave to remain is less practical
, particularly so when a child wishes to access services and education.
Home Office policy unlawful
In considering closely the 'discretionary leave to remain' policy, the judge concluded that it breached Home Office obligations under Section 55
, since the policy precludes any consideration of grants of indefinite leave to remain to both children and adults. As no differentiation was made between children and adults, the policy was found to be unlawful
Home Office policy in regard to children
Unfortunately, the High Court's decision does not mean that all children
who are granted permission to stay in the UK outside of the immigration rules can expect a grant of indefinite leave.
Following the July 2012 family migration changes, the Home Office issued a new policy on discretionary leave in April 2013. Instead of grants of 3 years' leave outside the immigration rules (with settlement after 6 years), the new policy allows for grants of leave outside the rules for 2.5 years
and settlement after 4 successive grants, or 10 years.
Whilst Mr Justice Holman expressed no view on the new policy (or its transitional arrangements), he has invited the Home Secretary to consider whether or not she should review the lawfulness of the policy
insofar as it relates to children.
This judgment demonstrates how the UK Border Agency's restrictive behaviour fails to consider the best interests of children, as expressed by the Supreme Court in ZH (Tanzania)  UKSC 4.
If children have been granted discretionary leave for a period of 3 years in accordance with the policy of October 2009, it may be worth seeking advice
on the viability of an application for such discretionary leave to be converted to indefinite leave to remain.